/J^i^>^^#i^ /^ /^^ •^ 



ARGUMENT 



HON. AARON F. PERRY. 



May it Please the Court : 

When General Burnside requested me to assist the District 
Attorney on this occasion, he forebore to give me any instruc- 
tions, except to present such considerations to the judgment of 
the Court as shouhl seem to me right and proper. I have a 
distinct impression that he has no preference that the questions 
here presented should be heard before any other jurisdiction or 
tribunal rather than this ; and that he wishes his proceedings 
to be here discussed by his counsel, chiefly on the broad basis 
of their merits ; that they should be made to rest on the solid 
ground of the performance of a high and urgent public duty. 
The main argument which I shall present to the Court will, 
therefore, be founded on the obligations, duties, and responsi- 
bilities of General Burnside as a Major-Gcncral in command of 
an army of the United States, in the field of military opera- 
tions, for the purposes of war, and in the presence of the 
cnom3% I shall not place it on any ground of apology, excuse, 
or palliation, but strictly and confidently on the ground of doing 
what he had a lawful, constitutional right to do ; and on the 
ground of performing a duty imposed upon him as one of the 
necessities of his oflicial position. I shall make no plea of an 
exigency in which laws are suspended, and the Constitution for- 
gotten, but shall claim that tlie Constitution is equal to the 
emergency, and has adequately provided for it ; that the act 
7 (97) 






98 * APPLICATION FOR 

complained of here is an act fully vrarranted by law, and 
authorized by the Constitution. T shall support this claim by 
references to more than one opinion of the Supreme Court of the 
United States, and to other authorities. 

But before advancing to the main arerument, I beg leave to 
invite a few moments' attention to the paper which is offered as 
a basis for the proposed action of this Court. It is a petition 
purporting to relate certain incidents or transactions which befell 
Clement L. Yallandigham, who is stated to be here in the city. 
No reason is shown why these statements could not have been 
authenticated by his own signature and affidavit. In the nature 
of the case, his attorney, Mr. Pugh, could have had little, if any, 
personal knowledge of the circumstances related. Mr. Vallan- 
digham, if any one, had knowledge of them. Yet Mr. Yallan- 
digham does not sign his own petition, nor make any affidavit. 
^Ir. Pugh, his attorney, makes affidavit that he " believes " the 
petition to be true. Is there any reason here shown why, if 
an affidavit be required, as undoubtedly it is, it should not bo 
made by the party knowing the facts ? Why should the general 
rule be set aside in this proceeding, which requires an affidavit 
to be made by the person who knows the circumstances, or, at 
least, that good ground be stated for offering the affidavit of 
another? I do not care to multiply remarks on this part of 
the case, but refer the Court to J5lr pa7ie Dorr, 3 How. 103, 
for an example of great strictness, in applications of this 
description. 

The petition thus vicariously made and sworn to, on behalf 
of Mr. Yallandigham, presents some peculiarities of structure, 
partly as matter of rhetoric and partly as matter of substance, 
which can not be entirely overlooked. It relates that tlie peti- 
tioner is a native-born citizen of the State of (Miio, a fact which 
may be interesting, but how it can lie thought to be material 
is not apparent. A native-born citizen of South Carolina, or a 
naturalized citizen, would be entitled to the same legal immu- 
nities. The petitioner next informs the Court that he is not 
enlisted or commissioned in the land or naval forces of the 
United States, nor called into actual service as one of the 



z. 



WRIT OF HABEAS CORPUS. 99 

militia. On tliis allegation the main argument for petitioner is 
grounded. It is implied by the whole argument, if not distinetly 
admitted, that if he had been enlisted or commissioned in the 
land or naval forces of the United States, or had been called 
into actual service as one of the militia, the arrest might have 
been made. Having thus drawn a broad line of demarkation 
between himself and those in the actual service of their country 
in a military capacity, he relates that, " nevertheless " he was 
arrested. The circumstances of the arrest are rhetorically 
stated; but, in substance, nothing more is made of it than an 
arrest. It was done, he says, between two and three o'clock in 
the morning ; done in his dwelling-house ; done in his dwelling- 
house in which his family then were. His house was sur- 
rounded ; surrounded by about one hundred soldiers ; soldiers 
in uniform and armed, acting under the direction of General 
Burnside. These soldiers then and there, he says, broke the 
outer door and two inner doors ; not only broke them, but vio- 
lently did it ; that they seized the petitioner, seized him b}'- over- 
powering numbers, and imprisoned him against his will. If peti- 
tioner had imagined it possible there might be those whose good 
opinion he valued, who might suspect him of want of enterprise, 
or want of activity in allowing himself to be captured, and who 
might look upon it as wearing unheroic aspects, and as tending 
to an anti-climax in his career, then this part of the petition 
might be useful in his defense. It is graphic and explanator}^. 
He was undoubtedly captured, not with his consent ; perhaps 
unexpectedly. And it must be confessed that the rehearsal 
carries with it more or less of the sound of aggravation. If 
these men had not been in uniform ; if there had been only 
seventy-five instead of a hundred; if they had broken open only 
two doors instead of three, or broken them more gently ; if they 
had merely arrested him, and had not "seized" him, or had not 
done it by "overpowering numbers," or had acted the little 
drama at precisely midnight or at sunrise or at noon, I appre- 
hend the legal effect would have been the same as now. This 
rhetorical literature is, for the purposes of legal inquiry, redund- 
ant. But in another particular there is no redundance. It is 



100 APPLICATION FOR 

not stated, nor does the attorney, in his afiRdavit of belief, venture 
upon the assertion that any thing of all these circumstances was 
■wanton or unnecessary. It is not charged that mure men -were 
there, or that mure violence was used in entering the house than 
was necessary, nor that petitioner has been sultjected to harsh 
treatment or useless rigor. It stands on the petition, after all, 
as a simple military arrest — no more. 

The petition further relates, not that the arrest was made 
without probable cause, or without a warrant, or without a 
charge supported by oath or affirmation, but in effect, that all 
three of these things did not exist together. It was, it is 
alleged, " without any warrant issued upon probable cause sup- 
ported by oath or affirmation, and in contempt of his rights as 
an American citizen." And this is the only part of the affidavit 
which goes to charge the arrest as illegal. It is stated, in an- 
other part of the petition, that petitioner is not, under the Con- 
stitution, amenable to be tried by a military commission ; but 
unless the seizure "in contempt of his rights" is equivalent to 
an allegation that the arrest was illegal, there is no allegation 
of illegality. 

The petitioner states further that he was furnished with a 
copy of the charge and specifications against him, which he 
exhibits and makes part of his petition, and which will be more 
particularly referred to in the course of the argument. For the 
present purpose it is enough to notice that the charge was, in 
substance, a charge of active disloyalty toward his own govern- 
ment, and of active sympathy with its enemies, now in battle 
array against it. Neither the petition nor affidavit denies that 
there was probable cause for the charge, nor that the charge 
was honestly believed by General Burnside to be true, nor that 
the charge was, and is in fact, a true charge. But the petition, 
claiming the arrest to have been made by soldiers, and by the 
command of a Major-General of the United States, declares it 
to be "manifest oppression under color of military authority," 
and invokes the action of this Court for his relief It appears 
that a portion of these allegations were made to show that this 
Court has jurisdiction. By the fourteenth section of the Judi- 



k3 



WRIT OF HABEAS CORPUS. 101 

ciary Act of 1789, the jurisdiction of this Court, in cases of 
Habeas Corpus, is confined to instances where the applicant is 
in custody, " under or by color of the aulhoriiy of the United 
States,^* etc. (Dunlop's Dig. 53.) That is to say, this application 
must be brought under one of two categories, or the Court has 
no jurisdiction: 1. The applicant must show himself in custody 
under the authority of the United States. Or, 2. He must 
show himself in custody by color of the authority of the United 
States. I submit that this petition shows that petitioner does 
not place himself in either category. The whole argument of 
Mr. Pugh is directed to the point that there is no authority in 
any branch or part or officer of the Government of the United 
States to make such arrests. If he is correct, the arrest is 
clearly not under the authority of the United States. His 
argument is that the act is wholly unauthorized and unconstitu- 
tional : in effect, that the United States is a corporation ; that the 
Constitution is its charter ; that this arrest is not authorized by 
the charter, and, in legal phrase, is idtra vires. If it be admitted 
to be legally done under the authority of the United States, the 
admission takes away all ground for a Habeas Corpus; for the 
end of a Habeas Corpus is to ascertain whether a commitment 
is legal. There may be cases where an arrest is made under 
the authority of the United States, in which all papers are in 
due form, and the authority indisputable, but where the process 
was set in motion by some groundless, Avanton, or fraudful 
device. In such cases, I apprehend, the jurisdiction of this 
Court would be ample. But this is not claimed to be a case of 
that kind. 

Indeed, the counsel for petitioner does not place the jurisdic- 
tion on this branch of the alternative. He denies, utterly, thor- 
oughly, and without stint or qualification, that this arrest was, or 
could have been under the autliority of the United States. He 
places the jurisdiction on the other ground, viz. : that the arrest 
was " by color of the authority of the United States." 

What is meant by color in law? An arrest under color of 
authority would be an arrest by proceedings apparently legal, 



102 APPLICATION FOR 

but wliich, by reason of some irregularity or defect, woubl be 
capable of being shown to be unauthorized. (Wharton's Lavr 
Die. 157; 1 Bouvier's Law Die. 243.) The case, Ex parte Joseph 
Smith, (3 McLean, 121,) is an example of arrest by color of author- 
ity. The warrant was in due form. The officer had full power. 
But the affidavit was defective on which the warrant had been 
issued. In the present case there was no mistake or defect, no 
f:illacious appearance or pretext, nothing pretended or supposed 
which has been found to be unreal. The authority was perfect, 
or it was nothing. It was wholly sufficient, or wholly wanting. 
It was a perfectly legal arrest, or it was an open, flagrant vio- 
lation of the peace. "Whatever else may be said of it, it can not 
be said to be by color of any thing. The fact that it was done by 
a Major-General, and by soldiers in uniform, do not give it the 
color of authority. Unlawful and unauthorized acts done by 
soldiers or officers of the United States are not by color of 
authority. " To give color to the plaintiff is to as!<ign to him, in 
the plea, some colorable (i. e., defective) hut fictitious title," etc. 
(Gould's Pleadings, 348.) I submit that it would be an abuse of 
language to call the arrest made by General Burnside a defect- 
ive or fictitious thing. It was completely authorized, or it had 
no colorable excuse. 

The petition, therefore, makes a case of arrest which was nei- 
ther '•under or by color of the authority of the United States," 
and consequently not within the jurisdiction of this Court ; or it 
makes a case of arrest every Avay legal and fully authorized, in 
which no writ of Habeas Corpus should be granted. 

Having sufficiently called attention to these preliminary points, 
I advance with more satisfaction to the main argument. The 
careful analysis of the petition, already made, will be found to have 
its uses and bearings in the argument which I shall now offer, 
not altogether disproportioned to the time which it has occupied. 

Mr. Pugh has correctly argued that a Habeas Corpus is in 
the nature of a writ of error to examine into the legality of an 
arrest or coniniilinont. If it appear that the arrest or commit- 
ment complained of was a legal act, the writ of Habeas Corpus 



/^ 



WRIT OF HABEAS CORPUS. 103 

will not issue ; because its whole office is to inquire into il^e 
legality of the act, and the Court will not do a nugatory and 
useless thing. 

A Habeas Corpus does not meddle with arrests legally made. 
There are well-kuown cases where the civil magistrates and 
officers of the peace make arrests on sight and without warrant. 
In such cases the legality depends upon circumstances to make 
a case where an arrest is allowed by law Avithout a warrant. 
These circumstances, if they exist, arc a warrant, or equivalent 
to it. So, if war or any other state of affairs exist, which by 
recognized principles authorize, require, and justify an arrest 
by military force, no Habeas Corpus can meddle Avith it. The 
order Avhich sends an army to make war, is all the Avarrant it 
needs for every necessary act of Avar. It may capture and im- 
prison enemies, and not those in arms only. " The whole," 
says Vattel's Law of Nations, p. 346, " is deduced from one 
single principle, from the object of a just Avar, for when the end 
is laAvful, he Avho has a right to pursue that end has, of course, 
a right to employ all the means Avhich are necessary for its at- 
tainment." One of the undoubted means of Avar is to take life. 
As the greater includes the less, the right to take life implies 
the right to take every thing. 

" All those persons belonging to the opposite party (even the 
women and children) he may lawfully secure and make prisoners, either 
with a view to prevent them from taking up arms again, or for the 
purpose of weakening the enemy."' . . . "At present, indeed, this 
last-mentioned expedient is seldom put in practice by the polished 
nations of Europe : women and children are suftcred to enjoy perfect 
security, and allowed permission to withdraw wherever they please. 
But this moderation, this politeness, though undoubtedly commend- 
able, is not in itself absolutely uldigatory, and if a General thinks fit 
to supersede it, he can not he justly accused of violating the laics of 
war." (Vattel, p. 352, 346.) 

Persons so captured or arrested are prisoners of war. 

" For the same reasons, which render the observance of those 
maxims a matter of obligation between State and State, it becomes 



104 APPLICATION FOR 

equally and oven more necessary in the unhappy circumstance of two 
incensed parties lacerating their common country. (Vattel, 425.) 

The application to citizens in revolt of the rules of war, is 
in the interests of mercy. If they should be put upon trial 
before a jury in such moments of overwhelming excitement, 
one of two results would follow. 

If the jury should not be so divided by the passions raging 
through the whole population as to disagree, and thus bring the 
law into contempt, their passions would take them to one side 
or the other. Men might be let loose, and certainly would be, 
■whom the safety of the State required to be restrained, or more 
probably convicted and executed without suflBcient evidence. 
"When society is imperiled by intestine war, the passions rage 
which occasioned the war. The entrails of the volcano, covered 
for a while, have at length broken forth. Smoke and ashes ob- 
scure the sky. Fiery floods pour along the earth. No good 
man could be impartial. Who claims to be impartial impeaches 
himself. Believing his government to be in the right, interest, 
feeling, lawful duty compel him to uj)liold it Avith all his power. 
He has no decent pretext, certainly no lawful excuse, for throw- 
ing on others a duty to uphold the government which he shrinks 
from. It is each man's duty as much as any other's. Its ene- 
mies are, and in the nature of the case must be, his enemies ; 
its friends his friends. The law allows him no other position. 
On the other hand, he who believes the government to be wrong 
has no choice but to sympathize with its enemies. He must 
assist them, and will assist them, either openly or by secret and 
suppressed sympathy. On one side or the other, men go to the 
j»n-y-box under the influence of deep feeling. The law of na- 
tions, or rather the laws of war, which in civil commotions au- 
thorize the opposing parties to treat each other as prisoners of 
war, is not, therefore, an aggravation of dangers, l)ut an ame- 
lioration of them. Vattel, p. 426, assigns two reasons for it: 
One, lest the civil war should become more cruel. The other, 
the danger of committing great injustice by hastily punishing 



WRIT OF HABEAS CORPUS. 105 

those who arc accounted rebels. " The flames of discord and 
civil war are not favorable to the proceedings of pure and sacred 
justice." More quiet times are to be waited for. 

It appears, then, that in time of war, the fact of war author- 
izes and legalizes arrests ; and the order for an army to make 
war is its sufficient warrant for making such arrests as are jus- 
tified by the laws of war. I am not now inquiring whether the 
arrest of Clement L. Vallandigham is justifiable by the rules of 
war. That inquiry will follow in its due course. I am now 
adverting to the laws of war, and showing that arrests of some 
kinds are authorized. These principles are, I suppose, undis- 
puted and indisputable. It follows that such arrests are legal ; 
and by showing the existence of circumstances making the 
arrest legal, a sufficient answer is made to a Habeas Corpus. 
The writ is not in such case suspended. It is respected, upheld, 
enforced, and performs all the office a Habeas Corpus can in 
any case perform. 

It is a logical consequence, unavoidably resulting from the 
premises, that while all wars, insurrectionary or foreign, bring 
into action the laws of war, they do not, necessarily, suspend 
the writ of Habeas Corpus. The Legislature may enact a 
statute making some act a crime which was not so before, and 
authorizing persons guilty of it to be arrested and held; or 
authorizing a writ of civil capias, under which the body is seized 
and held in circumstances not before authorizing such an arrest. 
These things not only may be done, but are frequently done. 
No one thinks of them as a suspension or abolishment of Habeas 
Corpus. So, in war, the laws of war authorize arrests which 
were not authorized until those laws were brought into play by 
the fact of war. In these cases Habeas Corpus is no more 
suspended than in the others. Full force and eff'cct may be 
given it while enforcing the laws of war. And this is the con- 
stitutional view. The power to declare war is broadly given ; 
the power to suspend Habeas Corpus is given distinctly from 
the war power, and in addition to it, "when in cases of rebel- 
lion or invasion the public safely may require it." If the opera- 
tion of the laws of war were a suspension of Habeas Corpus, 



106 APPLICATION FOR 

every thing had been said when Congress was autliorized to 
dcchvre war. No further declaration was needed. It is against 
correct rules of construction to hold that Habeas Corpus sus- 
pension is inteniled to be merely one of the means of war. 
Tlu-y might as well have provided for making war in one para- 
graph, and then have provided, as a separate and distinct power, 
authority to kill and capture enemies in battle. War may be 
made. In addition to making war, Habeas Corpus may be 
suspended in certain contingencies. 

Learned counsel, on the other side, has called our attention 
to the act of Congress of March 23, 1803; and to another act 
of Congress, showing that the oifense with which petitioner is 
charged is an offense against the civil law, and punishable under 
a law of Congress ; one for which he may be held and tried 
before the civil tribunals. Neither of these acts interferes with 
my argument. The first section of the act of March 23, 18G3, 
authorizes the President, in contingencies there named, to sus- 
pend the writ of Habeas Corpus. The learned counsel says he 
has not suspended it. Undoubtedly, if he had suspended it, 
there would be an end of tliis case. I do not claim that it is 
suspended. My whole argument proceeds on the ground that it 
is not suspended, ])ut in full force. That act of Congress is 
based upon the idea that arrests had before that time been made, 
and might again be made, which couhl only be sustained by a 
gus])ension of Habeas Corpus ; in other words, arrests, not sus- 
tainable by the laws of war, or by any other law, except the 
extreme demands of public safety when " in cases of rebellion 
or invasion the public safety may require." The suspension of 
Habeas Corpus is a suspension of a right to intpiire into the 
legality of an arrest ; for if it can be shown that the arrest was 
lawful, there is no need to suspend the Habeas Corpus. War 
had long before been recognized and legalized. Nothing ia 
more certain in law than that military men, in time of war, are 
legally protected in doing the acts authorized by the laws of 
war. Such acts are in no sense unlawful. But this act of Con- 
gress, sec. 4, provides an indcninity for acts done by the Presi- 
dent, or under his authority, which was wholly unnecessary 



<^ 



WRIT OF HABEAS CORPUS. 107 

unless it contemplated acts not defensible under the laws of -war. 
The act neither reprobates nor prohibits. It contemplates the 
necessity, allows the act, and provides for it. One of two con- 
structions is necessary. It refers only to such arrests as have 
been made under a suspension of Habeas Corpus, in which 
construction it does not apply to this case ; or it provides for 
irregular arrests, without process or Avith defective process, 
which might, if Habeas Corpus were sustained, be discharged 
under it. But in no event does it contemplate the discharge 
of an arrest by Habeas Corpus, unless or until the steps there 
pointed out shall have been first taken, or the contingency there 
provided for shall have happened. If learned counsel, therefore, 
bring themselves under the operation of this act, they defeat 
their application here, and are remitted to another mode of 
relief. If this act does not apply, it is outside of the case, and 
need not be further discussed. If it does apply, it is fatal to 
this petition. I understand learned counsel to admit that it 
does not apply here, and in this I agree with him. It is an 
undoubted principle of public law, that persons captured or 
seized under the laws of war are prisoners of war. They may 
be guilty of civil offenses, punishable by the civil tribunals. Im- 
prisonment under the laws of war does not discharge them from 
their offenses. They are or may be held until they can be 
brought to a legal trial in a time of restored tranquillity. Ne- 
cessity forbids their running at large ; humanity forbids to put 
them on trial at a time so unfavorable to the proceedings of 
pure and sacred justice. (Vattel, 426.) The act of March 23, 
1863, is expressly limited, in its operations, to prisoners who 
are held " otherwise than as prisoners of war." 

The President's proclamation of September 24, 18(32, suspend- 
ing Habeas Corpus and declaring martial law, is not referred to 
in the act of March 23, 1803, nor published in the regular 
edition of laws. I have no knowledge that it has been with- 
drawn or superseded, otherwise than as a matter of inference 
from the act of Congress. If it remains in force, it ends this 
application. I choose rather not to rely upon it. There is no 
inference to be drawn from the act of Congress against that 



lOS APPLICATION FOR 

part of it \ihich proclaims martial law ; but in tlio viow I am 
urging of the principles of public law, such a proclamation can 
perform no office except to give publicity to a fact before exist- 
ing. To whatever extent the fact of war brought into play the 
laws of war, those laws had their full force without a proclama- 
tion ; to that extent a proclamation was proper, but unnecessary. 
Beyond that it was nugatory, and could not add one cubit to the 
stature of Avar. A proclamation of martial law is often con- 
founded with, and considered equivalent to, a suspension of 
Habeas Corpus. But this is inaccurate. If the President had 
authority to issue such a proclamation, and has not rescinded it, 
nothing can be more clear than that Congress had no power to 
rescind it. But I do not choose to embarrass the discussion by 
relying upon a document which there is plausible ground to sup- 
pose Congress might not have considered in force. 

Having cleared the field of argument from such chances of 
misapprehension and confusion as prudence required, I recur 
to the proposition advanced by learned counsel on the other 
side, and which I had intended to advance myself, though 
scarcely necessary to be mentioned. 

A proceeding of Habeas Corpus is in the nature of a writ of 
error, to inciuire into the legality of the commitment or arrest. 
If the application shows the arrest complained of was a lawful 
one, the Court will go no further. It will not put a defendant 
to show, by his answer, what is already shown by the petition. 
On this I suppose I have the happiness to agree with learned 
counsel on the other side. I have also the happiness to agree 
with him that the right of Habeas Corpus has not, in this case, 
been suspended, but is to be treated as in full force, with neither 
more nor less respect than is habitually paid to it in courts of 
justice. 

I claim, then, that the facts before this Court show that the 
arrest of Clement L. Vallandigham, by Ambrose E. Burnside, 
a Major-General in the United States service, commanding in 
the Department of the Ohio, was a legal and justifiable arrest. 
For the facts showing its legality I rely, 1. On the petition and 
affidavit of the prisoner; 2. On facts of current public history of 



V 



WRIT OF HABEAS CORPUS. 109 

"which the Court is bound to take judicial cognizance. Among 
the facts of public history, I need recall but few. Unfortunately, 
the country is involved in dangers so many and so critical, that 
its people neither do nor can divert their thoughts to other topics. 

There is on foot an organized insurrection, holding by mili- 
tary force a large part of the United States, and controlling tbo 
political organization of at least twelve States of the Union. It 
has put into the field armies of such strength that the armies of 
the United States have not been able to overcome them. Bat- 
tles of great magnitude are fought, and prisoners mutually cap- 
tured and exchanged. In short, we have, for two years, been in 
a recognized state of civil war, on a scale large and destructive, 
almost beyond historical comparison. This insurrection claims 
to have so much power as to be beyond the means of the gov- 
ernment to overcome, and to be entitled to be recognized by 
foreign nations as an independent power. Were it possible to 
doubt the imminence of the danger, and extremity of peril from 
what we see around us, we should be warned of it by the admo- 
nitions of foreign governments holding the relations of friendly 
governments, and claiming to be impai-tial. They freely express 
the opinion that our danger is not merely extreme, but irreme- 
diable ; that the Constitution, and all hopes founded upon it, 
must perish. 

This insurrection has for impulse, feelings and opinions grow- 
ing out of the past civil history of the country. x\s a matter 
of course it can not be, and as a matter of fact it is not, limited 
to places, or described by geographical descriptions. In some 
parts of the country it dominates society ; in other parts it is 
dominated by the regular civil administration. We hear of no 
place so dark but that some weak prayers are uttered for the 
Constitution ; and of no place so bright but that lurking treason 
sometimes leaves its trail, or shows, through all disguises, its 
sinister unrest. 

The power and wants of the insurrection are not all nor chiefly 
military. It needs not only food, clothing, arms, medicine, but 
it needs hope and sympathy. It needs moral aid to sustain it 
against reactionary tendencies. It needs argument to represent 



110 APPLICATION FOR 

its origin and cairns to respect favorably before the world. It 
needs information concerning the strength, disposition, and 
movements of government force. It needs help to paralyze and 
divide opinions among those who sustain the government, and 
needs help to hinder and emluirrass its councils. It needs that 
troops should be withheld from governmenl, and its financial 
credit shaken. It needs that government should lack confidence 
in itself, and become discouraged. It needs that an opinion 
should prevail in the world that the government is incapable of 
success, and unworthy of sympathy. "Who can help it in either 
particular I have named, can help it as efl'ectually as by bearing 
arms for it. Wherever in the United States a wish is enter- 
tained to give such help, and such wish is carried to its appro- 
priate act, there is the place of the insurrection. Since all these 
helps combine to make up the strength of the insurrection, war 
is necessarily made upon them all, when made upon the insur- 
rection. Since each one of the insurrectionary forces holds in 
check or neutralizes a corresponding government force, and 
since government is in such extremity as not safely to allow 
any part of its forces to withdraw from the struggle, it has no 
recourse but to strike at whatever part of the insurrection it 
shall find exposed. All this is implied in war, and in this Avar 
with especial cogency. " If war be actually levied — that is, if a 
body of men be actually assembled for the purpose of efl'ecting 
by force a treasonable purpose — all those who perform any part, 
however minute, or however remote from the scene of action, 
and who arc actually leagued in the general conspiracy, are to 
be considered as traitors." (4 Cranch, 120.) 

The Constitution being paralyzed and suspended to the extent 
described, we may notice the situation and condition of the State 
of Ohio, where the petition states the arrest to have been made. 
Geographically it is midway between east and west, bordered 
on tbe south by Virginia nml Kentucky. l»oth States occupied 
])y contending armies, and over which the tide of war advances 
and rccedi'S according as its fortunes incline to one side or the 
other. On the north is Lake Erie, over which Kn^'laud and 
Americii hoM a divided swav. In the event of a war with En- 



WRIT OF HABEAS CORPUS. Ill 

gland, on the very verge of which we have sometimes seemed, 
a contest for supremacy on that great lake would be inevitable. 
Such a war is one of the hopes of the insurrection, and has 
been schemed for with amazing audacity. A military occupa- 
tion of either line of railroad running through Ohio, from the 
river to the lake, would sever the North-western from the 
North-eastern States. The population of the State is made up 
of all the conflicting elements now lighting the blaze of civil 
war in the country. The feelings of all are represented here. 
None of the extremes and none of the means are Avanting. 
That these elements should be carrying on a bloody strife in the 
immediate neighborhood, and no strife be kindled here, is im- 
probable in theory and untrue in fact. The insurrection in Ohio 
is dominated by the federal authorities, and operates in dis- 
guise, but it meets and receives constant attention. The argu- 
ments for insurrection made in South Carolina are openly 
repeated in Ohio. The charges there made against the govern- 
ment and those who administer it, as a provocation for rebellion, 
are openly made here, and with not much difference in the 
degree of animosity. The South Carolina orators, it is true, 
draw a different conclusion from their arguments and charges 
from that which is drawn here from the same arguments and 
charges. There, for the reasons stated, they declare eternal 
hostility to the Union; here, eternal fidelity to it. The means 
to accomplish these diverse results, however, are the same. In 
South Carolina they propose to overthrow Lincoln and his min- 
ions, in order to destroy the Union ; here it is proposed, in 
order to save the Union. There and here each foot steps in the 
other's track ; the toes all point in the same way, but the}' claim 
to be traveling in opposite directions. It is not ver}' h'lig since 
the marshal of this district was obliged to call for military force 
to suppress a revolt in Noble County in this State ; still later 
was a military force necessary to save Dayton from the ravages 
of a similar revolt. In numerous instances in Indiana military 
force has, been necessary. These are all fingers of the same 
hand. Your Honor does not forget how recently the records of 
this Court were removed, in order to save them from the con- 



112 APPLICATION FOR 

tingencies of an invasion by insurrectionary forces ; nor hovf 
recently, by voluntary labor, the people of this city raised em- 
bankments and forts to protect it from the insurrection. Nor is 
your Honor uninformed that these defenses are kept, day and 
night, in a state of preparation, armed and supported. This 
Court is sitting, as it were, in garrison. AVe are deliberating 
under the protection of the guns of Newport and Covington. 
At various parts of the State are camps. The streets of our 
cities are patroled by military guards. Has our government 
nothing to do that it should vex itself, and waste its means by 
these precautions, if not known to be necessary ? 

An inference is unavoidably drawn of the importance of a 
given field of operations, by the officers placed in charge of it. 
General Wright, who was first sent to command this Depart- 
ment, was a man eminent for military science and qlcar abilities. 
His undemonstrative habits and retiring manners prevented the 
high popular appreciation which he deserved. The next com- 
mander sent us is General Burnside, of Hattcras Inlet, of 
Roanoke Island, of Newborn, of South Mountain, of Antietam, 
of Fredericksburg ; a General not inferior in ability, nor second 
to any other in the aifections of his countrymen. With him 
comes that famous army corps, young in organization, but 
already old in sacrifices and in glory. Next in command, for 
Ohio, they send us the very Bayard of American volunteers, 
whose cool heroism at South Mountain was looked upon as an 
ample response to the high expectations formed of him from 
his accomplishments and previous services, and Avho crowned 
them all at Antietam Creek by performing there, with Ohio 
troops, trained under his own eye, a feat of arms fit to be com- 
pared with the far-famed passage of the Bridge of Lodi. If 
the government can aftbrd such Generals for the safe places, 
■what can it afford to the dangerous places? 

Why arc these men here? Have they, at any time since the 
war begun, sought any other but the place of danger? They 
are here — they are sent here for war: to lay the same military 
hand n]tMii this insurrection wherever they can find it, in small 
force or large force, before them or behind them, which they 



WRIT OF HABEAS CORPUS. 113 

have laid upon it elsewhere. They are not here to cry peace, 
when there is no peace ; not here to trifle with danger, or be 
trifled with by it. They are patriot Generals, commanding forces 
in the field in the presence of the enemy, constrained by their 
love of country, and in the fear of God only, to strike. Are 
they to fold their arms and sleep while the incitements to insur- 
rection multiply around them, and until words shall find their 
way to appropriate acts ? Are they to M'ait until the wires shall 
be cut, railroad tracks torn up, and this great base of supplies, 
this great thoroughfare for the transit of troops, this great 
center and focus of conflicting elements, is in a blaze, before they 
can act? Must they wait until apprehended mischief shall be- 
come irremediable before they can attempt a remedy? Jefferson 
Davis would answer " Yes ! " Traitors and abettors of treason 
would everywhere answer " Yes ! " I seem to hear a solemn 
accord of voices rising from the graves of the founders of the 
Constitution saying "No!" And I seem to hear the response 
of loyal and true friends of liberty everywhere swelling to a 
multitudinous and imperative "Amen!" 

I may as well here say what I have to say concerning the 
paper presented by General Burnside. It is eminently respect- 
ful to this Court and to the people. It is honorable to the feel- 
ings of the General, and creditable to his judgment. Anxious 
for the cause he represents, and needing the aff'ections of the 
people to uphold him in his great work, it Avas natural, and it 
was proper, that he should desire not to be misunderstood. It 
was natural and proper that he should give his most sacred 
assurances of his purpose not to assail liberty but to defend it. 
But, in my judgment, it was not necessary. The General is 
modest — I Avill not say too modest. The people know him bet- 
ter than he seems to think. They know him by acts Avhich 
speak louder than words. His principles and motives are as 
visible to them as the shining track of the sun. They know 
him as one of the first, then unheralded by fame, to bare 
his bosom to the bolts of this war. They know him as one 
whose political opinions and prejudices were strong against the 
present Administration, but who subordinated these to a sense 
8 



114 APPLICATION FOR 

of the necessity of saving the Constitution. They know him as 
one who has passed through perils innumerable, and has borne, 
•with equal constancy, victory and defeat; who, in all vicissitudes, 
has stood as a rock against which the waves of sedition dash 
and are broken. His acts are his explanation. He needed 
and will need no other. 

I have listened with interest and attention to the comments 
and criticisms of the eloquent advocate for Mr. Yallandigham, 
on this paper. Considering his zeal, his ingenuity, and his duty 
as an advocate, I am gratified to see how little he found to 
complain of. We are entitled, since it has passed this ordeal, 
to rest upon it as not only substantially unobjectionable, but in 
form and language prudent. It was, of course, the duty of the 
advocate to imply, in his criticism, if he did not state, that lib- 
erty of speech is chiefly in danger from the Generals who fight 
to uphold it, and not from the politicians who seek to render 
the services of the Generals ineffectual. It was properly within 
the arts of advocacy to drop out of sight the fact that liberty 
of speech, with other sacred and indispensable rights, have no 
adequate guarantee or defense except in the safety of the gov- 
ernment ordained to establish justice and secure the blessings 
of liberty to ourselves and our posterity. It was not in the line 
of his duty to remind us that the only Avay now to save liberty 
of speech is to save the government wliich was made to protect 
it. Let us imagine that at the large meeting addressed by Mr. 
Vallandigham, and during tlie delivery of his speech, an indi- 
vidual had risen from the audience and commenced tlicre a 
harangue in favor of the liberty of speech. Who, then, would 
be the defender of free speech, the man who raised for it an 
untimely clamor, or the constable who should seize him and sup- 
press the disturbance ? The right of free speech is only one 
of the rights secured by civil liberty, and, like other rights, is 
subjected to some limitations necessary for the safety of all. 
Civil liberty is defined to be, " the liberty of men in a state of 
society, or natural liberty, so far only abridged and restrained 
as is necessary and expedient for tlie safety and interest of the 
society, state, or nation." 



/// 

WRIT OF HABEAS CORPUS. 115 

I understood the learned counsel to intimate that government 
would receive the unanimous support of the people of Ohio, if 
it would do nothing which displeased any of them. " Touch not 
the liberty of the citizen, and we, in Ohio, at least, will be 
unanimous." May it please your Honor, the liberty of the citi- 
zen is touched when he is compelled, either by a sense of duty, 
or by conscription, to enter the army. The liberty of the citi- 
zen is touched when he is forbidden to pass the lines of any 
encampment. The liberty of the citizen is touched when he is 
forbidden to sell arms and munitions of war, or to carry inform- 
ation to the enemy. Learned counsel is under a mistake. We, 
in Ohio, could not be unanimous in leaving such liberties un- 
touched. The liberty to stay at home from war is at least as 
sacred as the liberty to make popular harangues. But since all 
these liberties are assailed by war, they must be defended by 
war. We, in Ohio, never could be unanimous in approving the 
action of a government which should force one portion of the 
population to enter the army, and allow another portion of it to 
discourage, demoralize, and weaken that army. Unanimity, on 
such conditionl, is impossible. But this suggestion of unanimity 
is not quite new. The zeal of the advocate, the charming voice, 
the stirring elocution with which it is now reproduced, does all 
that is possible to redeem it from its early associations. But we 
can not forget that the same thing has played a conspicuous 
part in the history of the last few years. At the last presi- 
dential election it happened, as it had on all preceding simi- 
lar occasions, that a majority of lawful votes, constitutionally 
cast, elected a President of the United States, and placed the 
federal administration in the hands of persons agreeing in 
opinion, or supposed to agree with that majority. It happened, 
as it had ordinarily happened before, that the minority did not 
agree with the majority, either as to principles or as to the 
men selected. It claimed to believe the majority in the wrong, 
and no minority could find provocation or excuse for being in 
the minority, unless it did believe the majority in the wrong. 
It is not now necessary to inquire which were right in their 
preferences and opinions. The minority were fatally wrong in 



116 APPLICATION FOR 

this, that they refused the arbitrament provided in the Consti- 
tution for the settlement of such controversies. The new 
administration must yiekl, because the minority found itself 
unwillin;j!; to yield. The old Constitution must be changed by 
new conditions, or run the risk of overthrow. In other words, 
it must be overthrown in its most vital principles, by compelling 
a majority to accept terms from a minority, accompanied by 
threats of war, or it might be nominally kept alive by consent- 
innf to abdicate its functions. All that the secession leaders 
proposed was, that they should be allowed to administer the 
government when elected, and, also, when not elected. They 
were willing to respect the constitutional rights of elections, pro- 
vided it should be conceded that if they were beaten they should 
go on with public affairs the same as if they had been elected. 
They were willing to take the responsibility of judging what 
they would like to do, and all they asked was the liberty to do 
it. " Touch not our liberties, and we can be unanimous ! " The 
same old fallacy reappears in every phase of the insurrection ; 
sometimes with and sometimes without disguise. Neither change 
of wigs, nor change of clothing, nor presence ifor absence of 
burnt cork, can hide its well-known gait and physiognomy. 
The insurrection will support the government, provided the gov- 
ernment will support the insurrection ; but the government must 
consent to abdicate its functions, and permit others to judge 
what ought to be done, before it can be supported. One of its 
favorite disguises is to desire to support the government, pro- 
vided it were in proper hands ; but to be unable to support it 
in its present hands. The proper hands, and the only proper 
hands for government to be in, are the hands in which the Con- 
stitution places it. If the whole country should believe any 
particular hands to be the most suitable, those hands would be 
chosen. He who can not support the government on the terms 
pointed out in the Constitution, by recognizing as the proper 
hands for its administration the hands in which the law places 
it, is not a friend, but an enemy of the Constitution. What he 
means by liberty is not that qualified liliorty in whicli all may 
share, but a selfish, tyrannical, irresponsible liberty to have his 



// 

WRIT OF HABEAS CORPUS. 117 

own way, without reference to the wishes or convenience of 
others. This notion of selfish and irresponsible liberty is an 
unfailing test and earmark of the insurrection. Whatever other 
appearances it may put on, it can always be known and iden- 
tified by this. No darkness can conceal, no dazzling light 
transform it. Wherever it may be found, there is insurrection, 
in spirit at least, and, according to different grades of courage, 
in action also. This kind of liberty can not live at the same 
time with the liberty which our Constitution was ordained to 
secure. Government must lay hands upon it or die. Danger- 
ous as its hostility may be, its embrace would be more fatal. 
Its hostility may, in time, destroy the government, but any 
government consenting to make terms with it is already 
dead. 

My eloquent friend on the other side desires to know what 
may be General Burnside's notion concerning the people, that 
he should fear the effect of Vallandigham's speeches ? On this 
subject I can only exercise my privileges of observation. I 
infer, from General Burnside's bearing and habits, that his 
opinions concerning the people are, in an eminent degree, 
respectful. I have an impression that he regards them and 
theirs with affectionate and undoubting confidence. I presume 
he thinks that if the people of Ohio can be persuaded that 
the war is a wicked one, they will give it a much less cor- 
dial support than they otherwise would. I presume he thinks 
well enough of them to suppose that if they can be persuaded 
to believe their government is striving to enslave them, they 
will resist it, with life and means and sacred honor. I do not 
suppose he is authorized to think so meanly of them as to 
imagine they would not make forcible resistance to an effort to 
enslave them. Three years ago, he might have imagined, as 
many others of us did, that such persuasions could never go 
beyond words, and would spend themselves in mere political 
heats. But he has seen the result of such experiments in South 
Carolina, Virginia, and over a large section of the Union. The 
people yet loyal to the Constitution have intrusted to him their 
sons, and he has seen them go down in battle on many contested 



118 APPLICATION FOP 

fields, to counteract tlio effect of just such persuasions. I infer 
that it has occurred to him, by this time, tliat there is danger of 
the effects of such persuasion. It would not surprise me to learn 
that he now looks back with regret, and wonders why the insti- 
gators and ringleaders could not have been seized before yet 
their treasonable words bore fruit in treasonable war ! — why we 
ever felt justified in thinking so meanly of the people of any 
section of the country as to suppose they could be persuaded 
their liberties were attacked, and yet not make an appropriate 
resistance ! Perhaps he may feel not a little distress when he 
reflects that all this bloodshed might have been saved, but was 
not, by a little timely vigor. I have not the least suspicion that 
he doubts the right of government to protect the people from 
such calamities. If it may crush treason in its blossom aud 
fruitage, how much more in its beginning. I can imagine a 
patriot General — for aught I know, General Burnside may be 
the man — who should say to himself, " I, too, am one of the peo- 
ple. These men, who fight under my command, are my neigh- 
bors. Yonder men, who meet us in battle, are our countrymen. 
Have not these baleful experiments of an unbridled license of 
tongue been carried far enough? ]May we not, at length, cease 
to trifle, and do what is possible to check these rivers of blood, 
by obstructing the head-waters from which they flow ! All other 
experiments having failed, may we not, as a last resort, listen 
to the dictates of common sense?" 

I do not propose to follow learned counsel in all their com- 
ments on General Burnside's statement. I do not complain of 
criticism. I have said enough not to leave myself open to the 
suspicion of slighting the remarks ofTered by counsel. I am 
now at liberty to pay that statement the practical compliment 
of trusting it to stand on its own merits. But before I pass 
frf)m the theme, I must acknowledge the respect paid to General 
Burnside's patriotism. It seems to bo conceded that the purity 
and nobleness of his motives arc un(juestionable. AVliat(M-er 
criticism is bestowed on other things, when counsel approaches 
an allusion to motives, ho is conscious of a jmre atmosphere and 
a high presence. Like Moses approaching the burning bush, ho 



WRIT OF HABEAS CORPUS. 119 

seems, as it were, to pull oif hat and shoes, and acknowledge 
himself to be standing on holy ground. 

Let us, then, turn to the petition of Clement L. Vallandigham, 
and see how it presents him. I know nothing, and desire to 
know nothing, of the man in this case, except what is shown by 
the papers before us. It is neither my habit nor my pleasure 
to incumber an argument with personalities. But I may say, 
and I will say, that if Mr. Vallandigham be a public man, aspir- 
ing to lead public opinion in this great crisis, and be, in fact, 
disloyal to the Constitution, or if he be of that bat-like nature, 
which ilits and flickers in the twilight between patriotism and 
treason, so that it never can, at a given moment, be certainly 
known which side he favors, then 

" May shamo and dishonor sit 
By his grave ever ; 
Blessings shall hallow it, 
Never 1 No, never!" 

The petition exhibits and sets forth a copy of the charge under 
which he was arrested. It shows us exactly the ground of his 
arrest. By referring to the charge and specifications, we have 
before us the case. It is not a little remarkable that no part of 
the charge or specification is denied. It stands for the purpose 
of this ini^uiry, as admitted. 

[Mr. Perry read the charge and specifications as published in 
another place.] 

It appears from this that he publicly addressed a large meet- 
ing of citizens. He was not expressing in secrecy and seclusion 
his private feelings or misgivings, but seeking publicity and in- 
fluence. The occasion and circumstances show the purpose to 
have been to produce an effect on the public mind, to mold 
public feeling, to shape public action. In what direction ? The 
charge says, by expressing his sympathies for those in arms 
against the Government of the United States, by declaring dis- 
loyal sentiments and opinions. He declared the war to be wicked 
and cruel, and unnecessary, and a war not waged for the pres- 
ervation of the Union : a war for crushing out liberty and erect- 



120 APPLICATION FOR 

ing a despotism. "What is tins but saying that those who fight 
against the United States arc in the right, and that it would be 
cowardly and dishonorable not to fight against the United States ? 
In what more plain or cogent language could he urge his au- 
dience themselves to take up arms against their government? 
If those who heard him could not be incited to fight against a 
government by persuading them it was making an unjust and 
cruel Avar to crush out liberty, how else could he expect to in- 
cite them ? If he did not hope to persuade them to join their 
sympathies and efforts with tlic enemies of the United States, 
by convincing them that these enemies are in the right, fight- 
ing and sufl'cring to prevent the overthrow of liberty, standing 
up against wickedness and cruelty, what must he have thought 
of his audience ? AVhat else but the legitimate result of his 
argument can we impute fairly as the object of his hopes ? To 
whatever extent they believe him, they must be poor, dumb dogs 
not to rally, and rally at once, for the overthrow of their OAvn 
government, and for the support of those who make war upon 
it. But he did not leave it to be inferred. He declared it to 
be a war for the enslavement of the whites and the freedom of 
the blacks. Which of the two was, in his opinion, the greater 
outrage, he does not appear to have stated. It is one of the 
unmistakable marks of the insurrection, by which it can always 
be identified, that its declarations for liberty are for a selfish 
and brutal liberty, which includes the liberty of injuring or dis- 
regarding others. If his white audience were not willing to be 
enslaved, that is to say, not willing to endure the last and most 
degrading outrage possible to be inflicted on human nature, they 
must, 80 far as they believed him, resist their own government. 
If he himself believed what he said, he must take up arms to 
resist the government, or stand a confessed poltroon. A public 
man, who believes that his government is guilty of the crimes 
he imputed, and will not take up arms against it, is guilty of 
unspeakable baseness. If liis audience believed what he told 
tlu'in, they must have looked upon advice not to take up arms as 
insincere or contemptible. No public man, no private man, can 
make such charges and decently claim not to mean war. All 



/^ 



WRIT OF HABEAS CORPUS. 121 

insurrections have tlicir pretexts. The man who furnishes these 
is more guilty than the man who believes them and acts on them. 
If the statements of Vallandigham were true, the pretexts were 
ample, not merely as pretexts, but as justification of insurrec- 
tion. They were more : they were incitements which it would 
be disgraceful to resist, and which human nature generally has 
no power to resist. The place where such things are done is 
the place of insurrection, or there is not and can not be a place 
of insurrection anywhere. If these laboratories of treason are to 
be kept in full blast, they will manufacture traitors faster than our 
armies can kill them. This cruel process finds no shelter under the 
plea of political discussion. Whatever might be said about ballots 
and elections, the legal inference is that it is intended to pro- 
duce the results which would naturally flow from it. If the 
President, with all the army and navy, and his " minions," is at 
work to overthrow liberty and enslave the whites, every good 
man must fear to see that army victorious, and hail its disasters 
with joy. Every good man must strike to save himself from 
slavery now while he can. The elections are far off, and may be 
too late. It can not be claimed that the motive Avas to influence 
elections, because the argument does not fit that motive. It fits 
to insurrection, and that only. He pronounced General Orders 
No. 38 to be a base usurpation, and invited his hearers to resist 
it. How resist it ? How could they resist it, unless by doing 
what the order forbade to be done ? 

What was there to be complained of except by persons wish- 
ing to do, or to have done by others, the acts by that order pro- 
hibited ? He invited to resist the order. "The order thus to be 
resisted, prohibited the following acts, viz.: Acts for the benefit 
of the enemies of our country, such as carrying of secret mails ; 
writing letters sent by secret mails; secret recruiting of soldiers 
for the enemy inside our lines ; entering into agreements to pass 
our lines for the purpose of joining the enemy; the being con- 
cealed within our lines while in the service of the enemy; 
being improperly within our lines by persons who could give 
private information to the enemy ; the harboring, protecting, 
concealing, feeding, clothing, or in any way aiding the enemies 



122 APPLICATION FOR 

of our country ; the habit of tloclaring sympathies for the enemy ; 
treason. These are the things prohibited in Order No. 38, 
\vhich Mr. Vallandigham invited his audience to resist. " The 
sooner," he tohl them, " the people inform the minions of 
usurped power that they will not submit to such restrictions on 
their liberties, the better." The " minions" here referred to were 
the commanding General of the Department and others charged 
with official duties under their own government. The "liberties" 
not allowed to be restricted were liberties to aid the enemies 
of the United States. He declared his own purpose to do what 
he could to defeat the attempt now being made to build up a 
monarchy upon the ruins of our free government. This resist- 
ance could mean nothing but resistance to his own government, 
which he had before declared to be making attempts to enslave 
the whites. These appeals to that large public meeting are 
charged to have been made "/or the purpose of iveakening the 
potver of his own government in its efforts to supjjj'ess an inilaiv- 
ful rchcUion" all of which opinions and sentiments " he well 
knew did aid, comfort, and encourage those in arms against the 
government, and could but induce in his hearers a distrust of 
their own government, and sympathy for those in arms against 
it, and a disposition to resist the laws of the land.'^ 

Not one syllable of all this is denied, and yet the arrest is 
complained of as unconstitutional. 

It must be so apparent as to need no further demonstration, 
that an arrest of some kind had l)ecome necessary for the pre- 
servation of public decency. Either General Burnsido and his 
soldiers should have 1)een arrested, or A^illandigham. The only 
open (juestion is, which was the proper party, and whether a 
mistake was made as to the man. If Vallandigham was right, 
General Burnside and every other officer of the army, or navy, 
every member of the Cabinet, even the Presi<lent himself, should 
be forthwith put under arrest. The Federal Congress, which 
voted supplies for the army engaged in such a foray on the 
rights and interests of mankind, ought to be promptly dispersed. 
On the other hand, if the President and Congress, and the Gov- 
ernment of the United States are not all criminals, if our Gen- 



/^ 



WRIT OF HABEAS CORPUS. 123 

erals and soldiers are not all minions and pimps of a wicked 
scheme to enslave the people. Vallandigham ought to have been 
arrested. The acts which General Burnside was sent here to 
perform, and the acts of Vallandigham, considered as separate 
acts, or as lines of action, could not possibly go on together. 
They were, in their essence and nature, incompatible things, and 
mutually destructive of each other. If General Burnside might 
have arrested Jefferson Davis, and held him a prisoner, why 
not Clement L. Vallandigham ? If we suppose the Constitution 
was intended to authorize two such incompatible and mutually 
destructive lines of action at the same time, we impute an in- 
credible absurdity. If it authorizes the drafting of one part of 
the population, the organizing of armies, and marching to battle 
to suppress insurrection, it can not at the same time authorize 
the other part of the population to thwart, defeat, and annul 
their efforts. On the other hand, if it authorize a portion of the 
people to attack, and resist, and discredit the government, it 
can not require the other portion to make war to defeat them. 
If the object of the Constitution was to provide for its own 
destruction and protect its enemies, the arrest of Vallandigham 
was a mistake : Burnside Avas the man. But if the object was 
to provide for the safety of the Constitution, and protect its 
friends, no mistake has been made. Vallandigham is the man 
to be arrested. It never could have been intended to allow 
them both to take the field at the same time. 

It is claimed that, since Vallandigham was not a military man, 
this arrest should have been made by the civil authorities. I 
understand the argument of learned counsel to be placed on this 
ground. Beyond or in addition to the ordinary arrests by civil 
process, none other are allowed under the Constitution, except 
such as are authorized by military law. Military law, he shows 
us, consists chiefly in the Rules and Articles of War, and applies 
only to persons engaged in the military service of the Government. 
The objection, therefore, is not one which relates to time, place, 
or circumstance. It denies authority to make such arrests at 
any time, in any place, or under any circumstances. I am not 
aware that language can state it more broadly than it was stated 



124 APPLICATION FOR 

by learned counsel. Any arrest or capture made by the army, 
of persons not in the military service, or so connected with it as 
to be subject to the rules of military law, is, he argues, an un- 
lawful arrest. All such arrests must be discharged on Habeas 
Corpus, unless it happen that Habeas Corpus has been sus- 
pended. A state of war, civil or other, does not, of itself, he 
tliinks, suspend Habeas Corpus. It is a part of his theory that 
Habeas Corpus has not yet been suspended. 

The unavoidable result of this argument is, if it be the law, 
that no prisoner has been taken during the Avar, who could not 
have had his discharge on Habeas Corpus. Tiie prisoners taken 
by General Burnside at Roanoke Island, and by General Grant 
at Fort Donelson, were dischargeable on Habeas Corpus. Gen- 
eral Banks can make no such arrests in Louisiana ; Rosecrans 
none in Tennessee; Grant none in Mississippi; Hooker none 
in Virginia ; Hunter none in South Carolina. Most of the pris- 
oners seized by these Generals are citizens of the United 
States, not engaged in the military or naval service thereof, nor 
called into actual service as a part of tlie militia. They could 
copy the form of the present petition, and conscientiously make 
oath to every material fact stated in it. It may be said that in 
those cases the prisoners taken were taken in the act of war, 
flagrante deliclu. But if there was no authority to take them, 
under any circumstances, the fact supposed can make no differ- 
ence. In order to rest a distinction on the fact of flagrant war, 
■where it exists, it must be admitted that in some cases the au- 
thority does exist, which being admitted, the whole proposition 
goes into collapse and disappears. The inquiry then comes 
down to an incpiiry as to time, place, and circumstance, which is 
a very distinct and different inquiry. 

In truth, however, much of the supposed difTerence in cir- 
cumstances does not exist. As Generals commanding different 
armies f»f the Unite(l States, all in the lirld fur jmrposes of war, 
and engaged in actual wai-, the authority eonferretl on them by 
the Constitution must be the same. One may be limited by 
special instructions, another not ; but without reference to such 
limitation, their general authority and duties as Generals must 



\yRIT OF HABEAS CORPUS. 125 

"be equal. The exigencies of war may press sometimes more 
heavily on one, sometimes on another. But if this is allowed 
to make a difference in the general authority exercised, the 
question is reduced to a question of circumstances, which learned 
counsel by no means admits. Nor does his proposition allow 
of an exception, if it happen anywhere that the civil adminis- 
tration, and the judiciary as a part of it, be forcibly obstructed 
and overthrown. This again would reduce it to a question of 
circumstances. His argument is that this kind of arrest is abso- 
lutely forbidden by the Constitution ; and being so forbidden, 
of course no circumstance can make it lawful. The denial is 
far-reaching and fun<lamental. 

It follows, as a necessary corollary from the proposition, that, 
if at any time, in any part of the United States, an insurrection 
can make so much head as to obstruct or overthrow civil admin- 
istration, it will have gained impunity. If those engaged in it 
may not be arrested by the army sent against it, they may not 
be shot. If they can not be persuaded, nothing can be done. 
The application of. restraint is imprisonment ; and unless mili- 
tary imprisonment be allowed, no imprisonment can take place. 
For in the case supposed, the civil administration is no longer 
practicable. It may be said that in such instances Habeas Cor- 
pus must be suspended. This does not meet the argument. We 
are inquiring what arrests may be lawfully made. Suspension 
of Habeas Corpus makes no arrest lawful which was before un- 
lawful. It merely suspends one remedy for unlawful arrests. It 
does not necessarily suspend other remedies, sucli as actions for 
false imprisonment and trespass. These are usually provided for 
by acts of indemnity which are not needed for lawful arrests. In 
England, these acts of indemnity may be passed by Parliament 
after the Avar is over ; for there is no constitutional proliibition 
against ex post facto laws. But here an indemnit}- act must pass he- 
fore the imprisonment, to be available as an indemnity. The ques- 
tion now under consideration is, what acts are lawful and need no 
indemnity ? What need can there be to suspend Habeas Corpus, 
when the civil tribunals, which alone should issue such writs, are 
already overthrown ? The question is, whether every act of bat- 



126 APPLICATION FOR 

tie or of war by our soldiers against an insurrectionary force, is 
a civil trespass, and needs an act of indemnity ? For if our 
soldiers may kill their enemies, they may capture them. Re- 
duced to its last analysis, it is a question whether it is lawful, 
by force, to put down an uidaAvful and forcible opposition to the 
civil authorities ; whether it is an unconstitutional act to enforce 
the Constitution. If the gentleman's proposition be true, must 
it not be also true tliat every forcible attempt to overthrow the 
Constitution has the guarantee of that instrument to protect it 
from harm and insure its success. . It is attacked by force, and 
its friends may not strike without committing trespass. 

Let us examine the grounds on which he founds his propo- 
sition. He cites several well-known provisions of the Constitu- 
tion : '' The trial of all crimes, except in cases of impeachment, 
shall be by jury ; and such trial shall be held in the State where 
the said crimes shall have been committed." . . " The right of the 
people to be secure in their persona, houses, papers, and effects, 
against unreasonable searches and seizures, shall not be violated; 
and no warrants shall issue but upon probable cause, supported 
by oatii or affirmation, and particularly describing the place to 
be searched, and the persons or things to be seized." . . . 
" No person shall be held to answer for a capital or other infam- 
ous crime, unless on a presentment or indictment of a grand 
jury, except in eases arising in the land or naval forces, or in the 
militia, when in actual service, in time of war or. public danger ; 
nor shall any person be subject, for the same offense, to be twice 
put in jeopardy of life or limb ; nor shall be compelled, in any 
criminal case, to be a witness against himself, nor be deprived of 
life, liberty, or property without due process of law ; nor shall 
private property be taken for public use, witliout just compen- 
sation ;" and some others. 

These arc parts of the Constitution, very valuable parts, but 
not the only ones. If the Constitution had provided no moans 
of enforcing the rights here mentioned it would have been very 
ineffectual to secure them. Its guarantees of these rights might 
or might not have been worth the paper on which they were 
written. The argument of learned counsel leaves the Constitu- 



/6- 

WRIT OP HABEAS CORPUS. 127 

tion precisely ■where the framcrs of it -woukl have left it, if they 
had put in it no otlicr clauses but these. I ask him what is to 
be done if it happen that by civil war the courts are overthrown, 
juries dispersed, and, in the State where the crime was com- 
mitted, all civil administration is rendered impossible? I ask 
him what is to be done if it happen that throughout any large 
portion of the United States the Constitution, and all the officers 
under it, all its recognized legal processes and tribunals, be forci- 
bly overcome and defied; and if those claiming the protection 
of the Constitution are, by unlawful violence there, 7iot allowed 
to be secure in their persons, houses, papers, and effects against 
unreasonable searches and seizures ? What if the enemies of 
the Constitution, in arms against its authority, do attack and 
seize its friends Avithout probable cause, without charges upon 
oath, and without warrant? "What if they do deprive them of 
life, liberty, or property without due process of law, and take 
private property for public use without due compensation? In 
a word, what if the enemies of the Constitution suppress, expel, 
or demolish every vestige of constitutional administration, and 
substitute therefor war — war by large armies, war by small 
bands, war by individual assassinations, hatreds, revenges, physi- 
cal force, war everywhere, so that not one shred or patch of the 
Constitution remains in that whole region ? The question to be 
answered here is, what is to be done in such a state of affairs? 
I have listened to the argument of my learned friend with re- 
spectful attention. I have wandered witli him over many fine 
fields of declamation, all about liberty and the Constitution, but 
I find no answer. 

Unfortunately the condition of the country urgently requires 
an answer. I find that answer in other parts of the Constitu- 
tion. The instrument would have been nugatory, an idle and 
perhaps cheerful composition, but wholly unworthy of its framers, 
if it could furnish no answer. If it could furnish no answer, we 
should find ourselves involved in a situation unprovided for, 
never contemplated as possible, and one which would be a la-w 
unto itself. Being without law for the situation, we should 
rightfully act upon the necessity before us. But my argument 



128 APPLICATION FOR 

is that tlie Constitution does provide an answer — a well-ex- 
pressed and adequate answer. That answer, in substance, is, to 
meet war with Avar. I refuse to be dazzled by glittering frag- 
ments of a broken Constitution, or to follow their illusory lights 
into a bottomless bog of anarchy. On behalf of the people I 
demaml the whole Constitution. On that rock we found our 
liberty, and the gates of hell shall not prevail against it. 

It is not necessary to repeat here the numerous passages of 
the Constitution intended to establish justice and secure liberty. 
They do not purport to create, but to guard and secure. Justice 
existed before, but the concern of the framers of the Constitu- 
tion was to "establish" it. Domestic tranquillity was an object 
of general desire, yet government was needed to "insure" it. 
The common defense might be, indeed, had been, conducted by 
them successfully without a constitution, but they deemed it 
expedient to " provide " for it. Liberty had been, by them, suc- 
cessfully asserted, but they felt the necessity of a government to 
"secure" its blessings. Therefore they did "ordain and establish 
this Constitution of the United States of America." Its framers 
understood perfectly that, without it, liberty might exist, but it 
would have no establishment or security. They would have 
wasted their many weary years with profitless endeavor, to 
behold, at last, the object of desire "speed away on cherub 
pinions — the guide of homeless winds and playmate of the 
waves." 

IIow, then, did they secure liberty? 

In the order of securities wc find, first, certain declaratory 
clauses. It is one step toward establishing and securing rights 
to agree upon tlieni and declare tliem. Tlie citizens of each 
State shall be entitled to all the privileges and immunities of 
citizens of the several States. Private property shall not be 
taken for public use without due compensation. No person 
shall be deprived of life, liberty, or property without due proc- 
ess of law, and other clauses before quoted. It is observable 
that in these declarations are embraced rights of a diflerent 
grade — rights called absolute and indefeasible, and rights merely 
conventional or secondary. But they are all declared with the 



WRIT OF HABEAS CORPUS. 129 

same solemnity, and secured by the same guarantees. Materials 
of different degrees of solidity and costliness ^vere fitted to their 
respective places in the edifice. The whole sti-ucture was nec- 
essary for the purpose contemplated, and all its parts and 
details were necessary to the structure. They do not tell us 
which of them could be taken away without danger to all. 

It was necessary to go further and provide for the enforce- 
ment of these declarations. The first step was to provide for 
electing a chief executive officer, to preside over and enforce 
the laws. "Without him the whole machinery would fail. Except 
in the manner there provided, there can be no President clectqd. 
But an election of President implies other things. When elected, 
he is to perform duties and exercise his faculties. Another 
practical security is provided by ordaining the election of a 
legislative body, and prescribing its functions, and declaring 
" That this Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties made 
or which shall be made under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
State shall be bound thereby, any thing in the constitution 
or laws of any State to the contrary notwithstanding." But, 
further than this, the Constitution provides for courts, judges, 
and marshals, to adjudicate and enforce the laws. It does not 
stop there. In all ages of the world men have been found not 
obedient to judicial decisions ; sometimes numerous and strong 
enough to overthrow and defy all the processes of civil admin- 
istration. The Constitution does not fail to provide for such an 
emergency. It crowns the guarantees before offered by provid- 
ing for an adequate physical force to overcome all opposition. 
It speaks of a well-regulated militia as necessary for the secu- 
rity of a free state. It provides authority to " raise and support 
armies, to provide and maintain a navy, and to declare war." It 
provides for organizing, arming, and disciplining the militia; for 
calling forth the militia to execute the laws of the Union, sup- 
press insurrections, and repel invasions. It makes the Presi- 
dent " commander-in-chief of the army and navy of the United 
9 



130 APPLICATION FOR 

States, and of the militia of the several States when called into 
the actual service of the United States." Thus placing at his 
disposal the entire resources of the country, it requires of him, 
before entering upon his office, to invoke the sanction of Al- 
mighty God, and clothe himself with an oath : '" I do solemnly 
swear (or affirm) that I will faithfully execute the office of Presi- 
dent of the United States, and will, to the best of my ability, 
preserve, protect, and defend the Constitution of the United 
States." 

The President is no longer a free man in the chimerical sense 
of freedom which we hear so much of. But he is not less free 
than other citizens, who are all bound to support the Constitu- 
tion. It is not one of the liberties secured by the Constitution, 
to select some particular right there guaranteed, to maintain it 
as distinct from and in opposition to the rest, or to hold fast to 
that one and let go the rest. Each holds his rights upon one 
ineradicable condition, that he shall, to the extent of his ability, 
maintain and defend every part of the Constitution. lie can 
not throw off his allegiance, defy the government, make war 
upon it, and, at the same time, claim its protection. When he 
lifts his arm against the Constitution, the arm may be cut off 
without giving him a right to complain of cruel and unusual 
punishments. When he lifts his voice against the liberties of 
his countrymen, his voice may be silenced in the interests of 
freedom of speech. When he arms himself to assail the defend- 
ers of the Constitution, those arms may be taken from him in 
the interest of the general right to bear arms. When he makes 
of his house a shelter for traitors, and barricades it from the 
approach of patriots, it may be broken open and searched in the 
general interest of freedom from unreasonable searches and 
seizures. 

In the civil administration different remedies are applied, 
each after its kind. A writ of capias seizes the body, but it 
does not violate the constitutional guarantees of personal lib- 
erty ; an attachment lays hold of goods, but does not violate 
property rights ; a replevin lircaks open houses, but does not 



WRIT OF HABEAS CORPUS. 131 

conflict Tvitli tlie rit^lit to be protoctcd from unreasonable searclies 
and seizures. The common law furnishes redress in some in- 
stances ; equity in others ; maritime law in others. Each of 
these is so far exclusive as, when properly appealed to, not to 
be interfered with by any other; and, while in progress, to be 
governed exclusively by its own rules. War is the last resort, 
but Avhen properly appealed to, its processes are due and reason- 
able processes, and, like the rest, must be allowed to work out 
results exclusively by its own rules. 

*' The body of a nation can not, then, abandon a province, a town, 
or even a single individual who is part of it, unless compelled to it 
by necessity, or indispensably obliged to it by the strongest reasons, 
founded on the public safety. 

" Since, then, a nation is obliged to preserve itself, it has a right 
to every thing necessary for its preservation. For the law of nations 
gives us a right to every thing without which we can not fulfill 
our obligation; otherwise it would oblige us to do impossibilities, or 
rather, would contradict itself iu prescribing us a duty, and, at the 
same time, debarring us of the only means of fulfilling it." 

" A nation or State has a right to every thing that can help to ward 
off imminent danger, and keep at a distance ichatevcr is capable of 
causing its ruin, and that from the very same reasons that establish its 
right to the things necessary to its preservation.^' (Vattel's Law of 
Nations, 5, 6.) 

The right of nations here described has been fully preserved 
to the United States by their Constitution, so far as the question 
nn<ler debate is affected. Tlie power to make war is given with- 
out limitations. So far as war may be a means of preservation, 
or for warding oif imminent danger, and keeping at a distance 
whatever is capable of causing its ruin, the nation is safe. The 
rights of war are as sacredly guaranteed as trial by jury, or 
personal liberty, or any other right whatever. The President 
can not claim to have preserved, protected, and defended the 
Constitution, to the best of his ability, until he shall have 
used all the ability given him by the utmost rights of war. He 
who declares he is willing to support the war, provided it creates 



132 APPLICATION FOR 

no disturbance, only declares lie is willing to support it, provided 
it shall be so couducted as to be really something else, and not 
■war. 

The Constitution does not define the meaning of Habeas Cor- 
pus, or trial by jury, or liberty, or war. They were to be ascer- 
tained elsewhere. I have before shown a definition of civil lib- 
erty. One of its conditions is an abridgment of natural liberty. 
Liberty was not abridged of the right to call in war to her de- 
fense, but she could not be endowed with a capacity for impos- 
sibilities. She could not require of human nature that which 
would be impossible to God himself, repose and commotion, peace 
and war at the same time. War could do little for Liberty, if she 
should hang forever sobbing on his neck, pinioning his arms, 
and holding; him back from being War indeed. No ! in this 
solemn time of domestic sorrow and of public peril, it is little 
better than sacrilege thus to potter with the meaning of words. 
By liberty was intended such liberty as was possible to mankind. 
By Avar was intended not a hollow pretext of war, but a lifting 
high of the red right hand of avenging justice. A thorough, 
condign, effectual laying hold of enemies ; a summary breaking- 
up of their hiding places, and a terrifying, deathly pursuit, until 
they shall cease to exist, or cease to be enemies. 

In Scott's Military Dictionary, a recent work, which, he says, 
was not prepared in view of existing disturbances, he states the 
following rule, p. 273 : 

•' With regard to the requisition of military aid by the civil magis- 
trate, the rule seems to be that when once the magistrate has charged 
the military officer witli the duty of suppressiii;^ a riot, the exci-ution 
of that duty is wholly confided to the judgment and skill of the. mili- 
tary officer, who thenceforward arts indcpemJcntli/ of the magistrate 
viiti'l the arrvicc rrqulrcd in fitJhj performed. Tlie magistrate can not 
dictate to the officer the mode of executing the duty ; and an officer 
•would desert his duty iC ho siibiiiittcd to receive any such orders 
frtnn the maji;istrate. Neither is it necessary for the ma<:istrate to 
acconq)any the (»fficcr in the execution of liis duty. The learniui:^ on 
these i)oints may be gathered IVom the charge of Mr. du>lice Little- 



WRIT OF HABEAS CORPUS. 133 

« 

dale, to the jury, in the trial of the Mayor of Bristol for breach of 
duty in not suppressing the riots at that city in 1831." 

I have spoken of militai-y law, Avhicli is claimed, by learned 
counsel on the other side, to be a laAV for military men. This 
law is often mistaken for or confounded with martial law, but 
the terms are very far from convertible. Martial law is often 
clefined as no law at all ; but this definition is rather an objur- 
gation against than a description of it. I venture to define 
martial law to be the rule of action adopted by all nations, and 
at all periods of the world, by which, in times of war, to guard 
against dangers that often arise, and by reason of the necessity 
of it, such discretion is given to the military commander, mea- 
sured by the requirements of the situation, as shall insure to 
his force the best cliances of success. It is that established 
practice, that common law of nations, by which, under the com- 
pulsion of right reason, when they have called an army into tlio 
field for war, and confided to it the safety of the commonwealth, 
they allow it, without hinderance or interruption, to perform its 
work. 

Counsel for petitioner reads to us many authorities to show 
that military law applies only to military men. Beyond this 
his argument is comprised either in a broad denial that martial 
law means any thing more than is intended by miUfarjj law ; or, 
if it does, an equally broad denial that it does or can exist in 
Great Britain or the United States. Ilis limitation of the mili- 
tary law, so called, appears to me rather more narrow than the 
authorities justify ; but for the purposes of this argument, I 
have no controversy with hiiu there. Let him take for granted 
all that I understand him to claim, as to the rule concerning' 
military law. The questions remain whether martial law or the 
laws of war, or the rights of war — phrases interchangeably 
used by the Supreme Court of the United States, in discussing 
the theme, and by writers — mean more than military law ; 
and if they mean more, whether they can exist in Great Britain 
or the United States. On both these questions counsel for peti- 
tioner takes the negative. If I can show him to be wronir here. 



134 APPLICATION FOR 

I shall hnve defeated his whole argument. For, although his 
argument is not confined to these in(|uiries, all other parts of 
it depend upon them. 

I have already cited Vattel to show that the same rules or 
laws of war apply, or ought to apply, to civil as to foreign war. 
The only doubt is, whether persons in insurrection against their 
own government, can rightfully claim the same treatment applied 
in mitiixation of the rigors of war to foreign enemies. The most 
merciful rule is the one to which Yattel inclines for reasons of 
expediency and humanity. It is the rule applied by our own 
government in this war. It is quite unnecessary to cite authori- 
ties to show that in foreign war the authority of a General is 
not limited to the military force under his command. During 
the Peninsular war, Wellington governed Spain and Portugal, 
and afterward a part of France, in the exercise of well-known 
and commonly-acknowledged rights of war. In our war with 
Mexico General Scott promulgated and enforced a plan for the 
government of Mexico. Some debate was raised at home 
whether the Constitution conferred so much power on a General. 
It was acquiesced in and approved. There could be no doubt 
of the authority to make war, and this was a necessary incident. 
Under the same rule Rosecrans controls civil administration in 
Tennessee, and Banks in Louisiana, and Curtis did in Missouri. 
Doubtless persons captured in flagrant acts of treason may be 
hung. As the greater includes the less, the right to hang im- 
plies the right to inflict lesser evil. Tliey are, therefore, allowed 
to be treated as prisoners of war. I am now speaking of the 
existence of rights of war, laws of war, or martial law, and show- 
ing them not to be limited to military men, and to be much 
more comprehensive tha«i military law — indeed, entirely distinct 
and different from it. I am not now making the application to 
Vallandigham. That is a question of circumstances. I am 
replying to the argument which denies the existence or appli- 
cation of such a law under any circumstances. 

To maintain his denials counsel cites many English authori- 
ties — among them Sir Matthew Hale — and he claims, as the 
result of those authorities, that martial law has been definitively 



WRIT OF HABEAS CORPUS. 135 

abanrlonod and prohibited in England. These anthorities do, 
some of them, show that certain gross abuses, which were prac- 
ticed by the Stuarts in Enghmd, under the pretext and name of 
martial law, but which found as little justification under martial 
law as under any other, have been prohibited. Perhaps he could 
show, with smaller research, that measures have been taken to 
prevent a repetition of the infamous and bloody assizes of Jef- 
feries ; but this would not go very far to discredit trial by jury. 
Trial by jury yet exists in England ; and martial law is applied 
there as often as occasion requires. If any thing may be fairly 
assailed by holding it responsible for abuses, the judiciary would 
be one of the first institutions of government to fall. Lookinjr 
over the history of past ages, it is apparent that military men 
would have some difficulty in establishing a claim to a leader- 
ship in the abuses inflicted on mankind. Most of the historical 
struggles for liberty have resulted from a real and natural antag- 
onism between peoples and their rulers ; rulers claiming, by some 
heritable superiority, to govern, and people feeling the govern- 
ment mainly in its oppressions. Whether judges or military men 
are most responsible for the cruelties inflicted in such struggles 
may be doubted. From a somewhat patient reading of law-books,. 
I am, however, prepared to admit that judges have felt much less 
alarm and indignation at stretches of power practiced by them- 
selves, than they have felt at the assumption of undue power by 
military men. If there were no history except what we find in 
law-books, judges would have a decided advantage over Generals. 
There are, also, specimens of popular forensic eloquence, origin- 
ally delivered as the voice of the people against despotic govern- 
ments, (some of them quite out of hearing), Avhich never lose 
their attractions. We rather like to hear them launched against 
our own government, that is to say, ourselves. Tlie difficulty of 
playing both people and tyrant, at the same time, is scarcely 
appreciable in those popular amusements. 

I am relieved from stating my own conclusions concerning the 
numerous English authorities cited, by finding an examination 
of them, and an opinion concerning them, by Mr. Attorney- 
General Gushing. (Opinions of Att'ys Gen'l U. S., vol. 8, p. 3G5.) 



136 APPLICATION FOR 

The Attorney-General, after remarking upon English authori- 
ties, sums up: 

" In fine^ (lir common Jato anthoritirsand commentators afford no clue 
to vhat martial laio, as understood in England, really is; hut much 
light is throion itpon the subject by debates in Parliament, and by fads 
in the executive action of government ^ 

This is a report to his own government by one of the most 
learned and laborious Attorneys-General the United States ever 
had. lie quotes Sir Mattliew Ilalc, also : 

"IMartial law is not, in truth and reality, a law, but somethina: in- 
dulged rather than allowed as a law : the necessity of trovernniciit, order, 
discipline in the army, is that only which gives these laws a counte- 
nance." (Hist. Com. Law, p. 39.) 

Mr. Attorney-General says : 

" This proposition is a mere composite blunder, a total misapprehen- 
sion of the matter. It confounds martial law and laio military: it 
ascribes to the former the uses of the latter ; it erroneously assumes 
that the government of a body of troops is a necessity, more than that 
of a body of civilians, or citizens. It confounds and confuses all the 
relations of the subject, and is an apt illustration of the incomplete- 
ness of the notions of the common-law jurists of England in regard 
to matters not comprehended in that limited branch of legal science." 

*' Even at a later day, in England, when some glimmerings of light 
on the subject began to appear, the nature of the martial law remained 
without accurate appreciation in Westminster Ilall." 

He cites the case of Grant ik Sir Charles Gould, (2 TI. "Black- 
Btonc, 98), decided by Lord Loughborough, who said : " The 
essence of martial law consists in its l)cing a jurisdiction over 
all mililnrii persons, in all circumstances." And because mili- 
tary men are triable for many offenses, and have their personal 
rights, f<ir the most part, regulated by law — "Therefore," ho 
gays, "it is totally inaccurate to state martial law as having any 
place whatever in the realm of Great Britain.' 



WRIT OF HABEAS CORPUS. 137 

Mr. Attorney-Gcncro.l says : " This is tofalli/ inaccurate,'' and 
explains why. 

Mr. Attorney-General then quotes Stephens's commentaries, 
vol. 11, p. 602, note. 

" 3Iarti;il law," says Stephens, " may be tlefincd as the law, whatever 
it may be, which is imposed by military power ; and has no place in 
the institutions of this country, (England), unless the Articles of War, 
established under the acts just mentioned, be considered as of that 
character." 

The Attorney-General proceeds: 

" Here again is pitiable confusion ; for the Articles of War are 
not a law 'imposed by the military power,' nor is martial law con- 
fined in its origin to the military power as the source of its existence." 

The confusion among English lawyers, remarked by the At- 
torney-General, will account, probably, for sonic inconsistencies 
of expression among English statesmen on this subject, though 
the action of English statesmen is suflficiently clear and consist- 
ent. The question whether martial law has " a place in the 
realm of Great Britain," as denied by Lord Loughborough, or 
"a place in the institutions of England," as denied by Mr. 
Stephens, is purely a question of historical fact, and history is 
against them. Nor is the question open to doubt. Martial law, 
such as I claim, has been unquestionably adopted and enforced 
in Great Britain and her provinces as often as any occasion 
has been felt for it. I may here dismiss the English authori- 
ties. 

Mr. Attorney-General Gushing, in his opinion, makes a most 
learned examination of the topic, and says : 

" Looking into the legislation of other countries, we shall find all 
the legal relations of this subject thoroughly explained, so as to 
furnish to us ideas at least, if not analogies, by means of which to 
appreciate some of its legal relations in the United States." 

These legal relations appear to be better defined in France 
than elsewhere. Three conditions or states are there provided 



138 APPLICATION FOR 

for. 1. Peace. In the state of peace, all military men are sub- 
ject to the law military, leaving the civil aniliorily untouched, in 
its own sphere, to govern all persons, whether civil or military, 
in class. 2. The state of war. When it exists, the military 
authority 7nai/ have to take precedence of the civil authority, 
which, nevertheless, is not deprived of its ordinary attributes, but, 
in order to exercise them, must, of necessity, enter into concert 
ivith the military commander. 3. The state of siege. When it 
exists, all the local authority passes to the military commander, 
who exercises it in his own person, or delegates it, if he please, 
to the civil magistrates, to be exercised by them under his orders. 
The civil law is suspended for the time being, or, at least, made 
subordinate, and its place is taken by martial law, under the 
supreme, if not direct administration of the military power. 
"27(6 state of siege may exist in a city, or in a district of country, 
either by reason of the same being actually besieged or invested by 
a hostile force, or by reason of domestic insurrection" 

Of these different stages, Mr. Gushing concludes, the state of 
siege is equivalent to the proclamation of martial law in England 
and the United States. 

I remark upon this, that these distinctions, after all, between 
a state of war and a state of siege, are not very valuable. Mar- 
tial law is a thing of necessity, and is limited by the necessity, 
so that the less urgent the necessity, the less extensive the power. 
It places in the hands of the General a discretion, as discretion 
is placed sometimes in the hand.s of judges and chancellors. 
It is said that martial law is no law ; and it is said that eijuity 
is the length of the chancellor's foot. But the chancellor, like 
the General, is required to exercise a "sound discretion," a 
" reasonable discretion," a " wise discretion, in view of all the 
circumstances." 

The New American Cyclopedia says : 

•' Marfi.d law is often confounded witli military law; but these 
terms arc by no means convertible." Speaking of martial law, it 
says: "It proceeds directly from tlic military power whieli has now 
become supreme. Yet. remotely aud indirectly, martial law expresses 
the will ol' the people."' 



"WRIT OF UABEAS CORPUS, 139 

*' Martial law has often been confounded with military law, hut the 
two are very dift'erent. Military law, with us, consists of the ' Rules 
and Articles of War,' and other statutory provisions for the jrovcrn- 
ment of military persons, to which may be added the unwritten or 
common law of the ' usage and custom of military service.' It exists 
equally in peace and in war, and is as fixed and definite in its pro- 
visions as the admiralty, ecclesiastical, or any other branch of law, 
and is equally, with them, a part of the general law of the land. 
But, in the words of Chancellor Kent, 'martial law is quite a distinct 
thing.' It exists only in the time of war, and originates in military 
necessity. It derives no authority from the civil law (using the term 
in its more general sense), nor assistance from the civil tribunals, for 
it overrules, suspends, and replaces both. It is, from its very nature, 
an arbitrary power, and ' extends to all the inhabitants (whether civil 
or military) of the district where it is in force.' It has been used 
in all countries, and by all governments, and it is as necessary to the 
sovereignty of a state as the power to declare and make war. The 
right to declare, apply, and enforce martial law, is one of the sover- 
eign powers, and resides in the governing authority of the state, and 
it depends upon the constitution of the state whether restrictions and 
rules are to be adopted for its application, or whether it is to be ex- 
ercised according to the exigencies which call it into existence. But 
even when left unrestricted by constitutional or statutory law, like the 
power of a civil court to punish contempts, it must be exercised with 
due moderation and justice ; and, as ' paramount necessity ' alone can 
call it into existence, so must its exercise be limited to such times 
and, places as this necessity may require ; and, moreover, it must be 
governed by the rules of general public law, as applied to a state of 
war. It, therefore, can not be despotically or arbitrarily exercised, 
any more than any other belligerent right can be so exercised." 
(Cushing, Opinions of U. S. Att'ys Gen'l, vol. 8, pp. 3G5, et. scq. ; 
"NVolfius, Jus Gentium, see. 863 ; Grotius, De Jur. Bel. ac Pac, lib. 2, 
cap. 8 ; Kluber, Droit des Gens, sec. 255 ; O'Brien, American Mili- 
tary Law, p. 28.) (International Law and Laws of War. Ilal- 
leck, 373.) 

" Martial Jaw, then, is that military rule and authority which exists 
in time of war, and is conferred by the laws of war, in relation to 
persons and things, under and within the scope of active military 
operations in carrving on the war, and which extinguishes or suspends 
civil rights, and the remedies founded upon them, for the time being, 



140 APPLICATION FOR 

SO far as it may appear to be necessary in order to the full accom- 
plishment of the purpose of the war — the party who exercises it 
beino; liable in an action for any abuse of the authority thus con- 
ferred. It is the application of military government — the govern- 
ment of force — to persons and property within the scope of it, 
according to the laws and usages of war, to the exclusion of the 
muniripal government, in all respects where the latter would impair 
the efficiency of military law or military action." (Benet's 3Iilitary 
Law and Courts-martial, 14.) 

" We remark, in conclusion, that the right to declare, apply, and 
exercise martial law is one of the rights of sovereignty, and is as 
essential to the existence of a state as is the right to declare or carry 
on war. It is one of the incidents of war ; and, like the power to 
take human life in battle, results directly and immediately from the 
fact that war legally exists. It is a power inherent in every gov- 
ernment, and must be regarded and recognized by all other govern- 
ments ; but the question of the authority of any particular function- 
ary to exercise this power, is a matter to be determined by local and 
not by international law. Like a declaration of a siege or blockade, 
the power of the officer who makes it is to be presumed until dis- 
avowed, and neutrals who attempt to act in derogation of that 
authority, do so at their peril." (International Law and Laws of 
AVar. Ilalleck, 380.) 

" The English common law authorities and commentators generally 
confound martial with inilltary law, and, consequently, throw very 
little light upon the subject, considered as a domestic fact; and in 
parliamentary debates, it has usually been discussed as a fact, rather 
than as forming any part of their system of jurisprudence. Never- 
theless, there are numerous instances in which martial law has been 
declared and enforced, in time of rebellion or insurrection, not only 
in India and British colonial possessions, but also in England and 
Ireland. It seems that no act of Parliament is re([uircd to precede 
BU'-h declaration, although it is usually Ibllowed by an ftct of indem- 
nify, when the disturbances which called it forth are at an end, in 
order to give constitutional existence to the fact of martial law.'' 
(/J., Jh. 374.) 

I will now ask attention to two cases discussed in tlic Su- 
preme Court of the United States, wliich <fivc the sanction of 
that Court to the- doctrine I am endeavoring' to sustain. 



-?. 



WRIT OF HABEAS CORPUS. 141 

The Constitution provides that private property shall not be 
taken for public use without due compensation. Yet a General, 
going to war, could not post his sentinels without committing 
wliat would be, in peace, a trespass. Every mile of his march, 
Avith ordinary military precautions, every encampment, would 
be a violation of law. In Mitchell v. Harmony, 13 How. 115, 
the plaintiff below had sued an officer of the army of the United 
States for taking his property during the Avar Avith ^lexico. It 
Avas taken on error to the Supreme Court of the United States, 
on exceptions to the charge of the Circuit Judge to the jury. 
Chief-Justice Taney said, p. 133: 

" Upon these two grounds of defense the Circuit Court instructed 
the jury that the defendant might lawfully take possession of the 
goods of the plaintiflf to prevent them from falling into the hands of 
the public enemy ; but in order to justify the seizure, the danger 
must be immediate and impending, and not remote or contingent. 
And that he might also take them for public uses and impress tliem 
into the public service, in case of an innnediate and pressing danger 
or urgent necessity existing at the time, but not otherwise." 

The charge, as thus stated, Avas sustained. Again, on page 
134, the Chief-Justice said: 

"There are, without doubt, occasions in wliich private property may 
lawfully be taken possession of or destroyed, to prevent it iVoni fall- 
ing into the hands of the public enemy; and also Avhcre a military 
oflScer, charged Avith a particular duty, may impress priA'ate property 
into the public service, or take it i'or public use. Uiu^ucstionably, 
in such cases, the government is bound to make full compensation 
to the owner; hut the ojjiccr is not a tratjmsser." . . . "It is the 
emergency that gives the right, and the emergency must be shown to 
exist before the taking can be justified. In deciding upon this ncccs- 
siti/, however, the state of the facts, as they appeared to the officer, at 
the time he acted, must govern the decision; for he must necessarily 
act upon the information of others, as well as his own observation." 

jNIr. Justice Daniel delivered a dissenting opinion on other 
points. But on this point he said, p. 139 : 



142 ArPLlCATIOX FOR 

" Tlic principle itself, if properly applied, of the right to take 
property to prevent it froui falling into the hands of the enemy, is 
undisputed." 

And again, same page : 

" I have no doubt of the right of a military officer, in a case of 
extreme necessity, for the safety of the government or army, to take 
private property for the public service." 

Again, p. 140 : 

" The safety of the country is paramount, and the rights of the in- 
dividual must yield in case of extreme necessity." 

Observe that this is not placed on the ground that, in ex- 
treme necessity, the Constitution is suspended, and tlie laws 
properly broken ; but it is held to be a lawful act. They do 
not look upon it as trespass, excusable from great urgency, 
but they declare it not to be a trespass. The officer is clothed 
with a lawful right to do it. But this property right is guarded 
by the same sanctions in the Constitution with the right of 
personal liberty. Inasmuch as a person may give the enemy 
more help, or expose our own army to greater dangers than 
property could, the reason is more cogent when applied to per- 
sons. 

During the celebrated Dorr rebellion, the Legislature of Rhode 
Island passed an act declaring the State under martial law. One 
Martin Luther bcin;^ charo-ed with aiding and abetting the rebel- 
lion, his house was broken open and entered, and he was arrested, 
or, in the language of the petition in this case, he was " seized 
by overpowering numbers." He brought an action against the 
parties who made the arrest, in trespass quarc clansum frc(/i(. 
They justified under the statute declaring martial law. It ap- 
pears that tlu-re was not, in that case, more than in this, ''any 
warrant issued upon probable cause, supported by oatli or aflirma- 
tion." Li that action martial law, as a topic, came under dis- 
cussion in the Supreme Court of the United States. (Lutiier v, 
Borden el al., 7 IL 1.) Cliiii- Justice Taney delivered the opinion 



Avf; 

WRIT OF HABEAS CORPUS. 143 

of the Court, from ^vhich I sliall presently read. But before 
doing so, I propose to read from the dissenting opinion of Mr. 
Justice Woodburj'-, and to invite the attention of learned counsel 
on the other side to his descriptions of martial law, and the 
distinction he makes between what is called military law and 
martial law. It will appear that Mr. Justice Woodbury enter- 
tained an antipathy to martial law, at least, as vehement as that 
of counsel on the other side. The kind of martial law then 
under discussion, and which was sanctioned by the Court, well 
appears in his opinion. I shall read some passages showing 
that, with all his antipathy for military power, he did admit the 
propriety of an occasional exercise of military authority, pre- 
cisely such as I say is authorized by martial law, and under 
precisely such circumstances. The difi'erence between his posi- 
tion and the one Avhich I am endeavoring to maintain, is this : 
He considers the exercise of the power in question to be merit- 
orious, and deserving the gratitude of the country, but a breach 
of the law. I am endeavoring to maintain that it is in accord- 
ance with law. His Honor quotes the language of the Rhode 
Island statute, declaring martial law to be in force over the 
entire State, and on page 59 says : 

"Now the words martial law, as here used, can not be construed 
in any other than their legal sense, lona; known and recognized in 
legal precedents as well as political history. (See it in Ilallara's 
Const. Ilist. cb. — , p. 258. 1 MacArthur on Courts-martial, 33.) 
The legislature evidently meant to be understood in that sense by 
using words of such well-settled construction, without any limit or 
qualification, and covering the whole State with its influence, under 
a supposed exigency and justification for such an unusual course. I 
do not understand this to be directly combated in the opinion just 
delivered by the Chief-Justice." 

He then declares it to be manifest that it meant the ancient 
martial law " often used before the Petition of Right, and some- 
times since." He adverts to the fact that defendants do not 
aver the existence of any civil precept, which they were aiding 
civil officers to execute, but set up merely military orders under 



144 APPLICATION FOR 

martial law. The dissenting opinion then argues that this did 
not mean merely a suspension of Habeas Corpus, nor the mili- 
tary code used in the armies of the United States and England : 

'"Fur." s;iid bis Ilduor, " notliing is better settled than tliat mili- 
tary law njiplios only to the military, hut martial law is made licrc to 
(ij'pl^ to all." 

Again, page 61 : 

" So it is a settled principle, even in England, that under the 
British Constitution the military law does, iu no respect, either super- 
sede or interfere with the civil law of the realm ; and that the former 
is, in general, subordinate to the latter, (Tytler on Military Law, 36, 
51), uhile martial law overrides them all." 

On page 02 his Honor gives us a lively description of martial 
law, such as was declared by the statute in Rhode Island, and 
such as "described in judicial as well as political history." The 
rhetoric of learned counsel on the other side has often excited 
my admiration ; never more than in his opening argument, when 
he (k'nounccd martial law. But here is a passage from Judge 
Woodbury, written, probably, with more care, and, perhaps, with 
greater experience, which I hope to be pardoned for saying, is 
rather superior to any thing we had the pleasure of listening to 
tliis morning. It lacked only the fine voice and elocution of the 
advocate of Mr. Vallandigham to make it even more elTectivc 
than any thing he uttered : 

"It exposed," says Mr. Justice Woodbury, " ibc whole population, 
not only to be seized without warrant or oath, and their houses broken 
open and rifled, and this where the municipal law and its officers and 
courts remained undisturbed and able to punish all offenses, but to 
send prisoners, thus summarily arrested in a civil strife, to all the 
liarsh jtains and ]»cnaltics of courts-martial, or extraordinary commis- 
pion, and for all kinds of supposed offenses. By it every citizen, 
instead of reposing under the shield of known and fixed laws as to 
liberty, property, and life, exists with a rope round his neck, subject 
to be hung up by a military despot at the next lamp-post, under the 
sentence of some drum-head court-martial." 



"WRIT OF HABEAS CORPUS. 145 

After rending these animated and highly-wrought judicial 
statements of impressions of a military court, one feels an 
inclination, from motives of literary curiosity, to read some 
description, by an imaginative military man, of a Court of 
Chancery. The effect of subordinate and accidental circum- 
stances on the imagination is notable. His Honor had been 
obviously affected by thoughts of a drum -head as one of the 
articles sometimes made use of at a military trial. They do 
not use drum-heads in the Supreme Court of the United States, 
having conveniences for writing of a more fixed and satisfactory 
nature. One would wish to see an equally vivid account, by 
some General, how his imagination was affected by sight of his 
Honor's long black gown, without hoops or tournure. The drum- 
head excited in his Honor's mind thoughts of a whole popula- 
tion, and especially peaceful citizens, each with a rope round 
his neck, waiting to be hung — hung to a lamp-post, and not 
only a lamp-post, but the nearest lamp-post. It is to be pre- 
sumed that the thoughts suggested to a General by his Honor's wig 
and <rown, micrht have been more maternal and far less suffocatinor. 
But it may be reckoned as certain that a military commander would 
have felt some shock or revulsion at hearing from that august 
tribunal, issuing solemnly forth from the blackness of an aged 
and collapsed gown, a judicial representation of martial law: 
not invoked as a shelter from imminent peril to the State, and 
used because nothing less summary could be availing, nor used 
in the interest of civil order, but as inexcusably obtruded upon 
a people enjoying the beatitudes of undisturbed peace, and who 
but for it would be " reposing under the shield of krtown and 
fixed laws as to liberty, property, and life." Such being the 
product of judicial reason in the highest civil tribunal, a Gen- 
eral might turn back to his drum-head without a very deep 
conviction of its inferiority. 

His Honor says, p. G4 : 

" It appears, also, that nobody has dared to exercise it, in war or 
peace, on the community at large, in Enirland, for the last century 
and a half, unless specially enacted by Parliament in some great exi- 

10 



14(3 APPLICATION FOR 

gency, and under various restrictions, and then under the theory not 
that it is consistent with bills of rights and constitutions, but that 
Parliament is omnipotent, and, for sufficient cause, may override and 
trample on them all temporarily." 

" After the civil authorities have become prostrated in particular 
places, and the din of arms has reached the most advanced stages of 
intestine commotions, a Parliament, which alone furnishes the means 
of war — a Parliament unlimited in its powers — has, in extremis, on 
two or three occasions, ventured on martial law beyond the military," 
etc. 

The question now under debate is, not who may declare mar- 
tial law, but whether, in any emergency, it may be declared. 
Nevertheless, his Honor is under a mistake as to the fact. (See 
Hansard's Pari. His. 1801, vol. 35, pp. 1013, 1018, 1024.) In 
a debate in the House of Commons, in 1801, Lord Castlereagh 
said : 

" I perfectly understand that the prerogative of the Crown author- 
izes those acting under its authority to exercise martial law. I 
maintain that it is a constitutional mode for the executive govern- 
ment to excrcij^e martial law in the first instance, and to come to 
Parliament for indemnity afterward, and is preferable to applying to 

Parliament first TItc rchclUon in Ireland broke ou( in May, 

1798; the cxeeutlvc government puhliahtd a proelamation of martial 
law xclierever the rebellion existed, widiout any express law for that 
piirpn^r. They did it on the principle that they were authorized by 
the king's prerogative, provided they did not transgress the necessity 
of the case, and sure I am that nothing could have induced them to 
have departed from the strict constitutional system, but that they 
felt they must deny to a great part of the country the advantages of 
the civil law, unless it were incorporated with the martial law. The 
two systems, existing at the same time, led to such a conflict of jiu'is- 
diction it was impossible to give eflfcct to others." 

It was denied by others that the proclamation of martial law 
could rightfully be made by virtue of the king's prerogative. 
The fact, however, is beyond question : il tvas made, and not 
hy ParVunnent. 



M 

"WRIT OF HABEAS CORPUS. 147 

His Honor, Judge Woodbury, p. 69, says : 

" All our social usacres and political education, as well as our con- 
stitutional checks, are the other way. It would be alarming enouj^h 
here to sanction an unlimited power, exercised by lej::islators, or the 
executive, or courts, when all our governments are themselves gov- 
ernments of limitations and checks, and of fixed and known laws ; 
and the people a race above all others jealous of eucroachmeuts by 
those in power." 

He nowhere drops the fallacy of regarding martial law as a 
substitute for civil law in time of peace and safety. He keeps 
up the illusion of constitutional checks and limitations standing 
unassailed, free from threatened overthrow, and needing no mili- 
tary support. On this halcyon scene he imagines to be thrust 
the sudden, unnecessary march of armies ; he is startled at the 
vision of bayonets and the sound of military command. With 
equo.lly cogent logic might he demonstrate the inappropriateness 
of snow in harvest. Through all this elaboration, there breaks 
upon him, at last, a dim consciousness of not having met the 
question. He rids himself of it by one dogmatic stroke, and 
hurries forward to lose himself again in a thicket of evasions. 
During this moment of consciousness, he says, p. 69 : 

"And it is far better that those persons should be without the 
protection of the ordinary laws of the land, who disregard them in 
an emergency, and should look to a grateful country for indemnity 
and pardon, than to allow, beforehand, the whole frame of jurispru- 
dence to be overturned, and every thing placed at the mercy of the 
bayonet." 

Here, at last, is all the argument against martial law that is 
produced, either in this dissenting opinion, or elsewhere. Mid- 
fum in parvo. The occasional necessity for extraordinary reme- 
dies is admitted. That it is a rule of action among men to 
resort to these remedies, when needed, is not denied. That 
those who, in cases of peril, perform these services are entitled 
to the gratitude of their country, and may properly look to it 
for indemnity, is not only conceded, but is urged as part of 



148 APPLICATION FOR 

the argument. If we may be grateful to those wlio, in an emer- 
gency, overturn the whole frame of jurisprudence, might we not 
be still more grateful to those who made a frame of jurispru- 
dence which docs not require, in an emergency, to be overturned? 
It is conceded that, in times of peril, the public safety is the 
supreme law. But it is argued that because this law might be 
perverted and abused, it should itself be considered a perver- 
sion and abuse ; one which entitles the performer to the grati- 
tude of his country. It is customary to erect monuments to 
those who are entitled to public gratitude. On the theory I am 
combating, the inscription should be, " Sao'ed to the memory of 
a patriot, who earned the gratitude of his country by perverting 
and abusing its laivs, and by overturning the whole frame of its 
jurisprudence.'' The argument presupposes that persons in- 
trusted with government functions are so bad that, if allowed 
by law to do the act when necessary, they would be likely to do 
it when not necessary. To avoid this danger, they are to be 
considered so good as to be relied upon to overturn the govern- 
ment, if need be, in order to save it. There is so much danger 
that public men will violate the law under false pretexts, they 
are to be encouraged to violate it without any pretext. And 
such violation is to be considered a legitimate means of becom- 
ing public benefactors. Is it possible for absurdity to go 
further? 

In the next paragraph, we find his Honor no more face to 
face with the question, but retired l)ehind a screen : 

" No triliunal or department in our system of governments ever 
can be lawfully authorized to dispense with the laws, like some of 
the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole 
body of them ; or, in otlior words, appoint an unrestrained military 
dictator at the head of armed men." 

Again and again, the question is not whether the laws may 
be dispensed with. It is whether the laws authorize, in certain 
situations, the performance of acts which, if performed, even 
against the law, would ])e titles to public gratitu<le. Why should 
we be always answered only by an absurd jingle of words — 



-9 r 

"WRIT OF HABEAS CORPUS. 149 

about being " laivfully aufhorized to dispense iviih the laws, like 
some of the ti/mnnical Stuarts " Is it claimed that the tyranni- 
cal Stuarts were lawfully authorized to dispense with the laws ? 
Or, if they were, did his Honor imagine tliat the fair administra- 
tion and enforcement of a law is the same sort of thing, the same 
kind of tyranny, as dispensing with it? On his own theory, 
the Stuarts might have been entitled to public gratitude, if they 
had happened to overturn the law at the right time. Tiie 
question is, whether, in great emergencies, the commander of the 
military force may be considered as lawfully intrusted with a 
discretion, limited and restrained strictly within the necessity of 
the occasion ? In reply to this question, his Honor denies that 
there ought to be " an unrestrained military dictator at the 
head of armed men." He denies that authority exists to repeal, 
abolish, or suspend, the whole body of the laws. But if no tri- 
bunal or department in our government is authorized to over- 
throw or suspend the laws, are they authorized to allow others 
to overturn them ? The question is, what may be done to save 
the laws from overthrow? The army and navy and militia are 
at the President's command, and his oath binds him " to the 
best of my ability." 

On pages 75 and 82, his Honor refers to the different steps 
toward war powers, which precede the shock of war and the laws 
of war. And, on page 83, he says : 

" The necessities of foreign war, it is conceded, sometimes impart 
great powers as to both things and persons. But they are modified 
by those necessities, and subjected to numerous regulations of national 
law and justice and humanity So mat/ it be in some ex- 
treme stages of civil tear. Among these, my impression is that a state 
of war, whether foreign or domestic, may exist, in the great perils of 
u'hich it is competent, UNDER its rights, and on rRiNclPLES OP 
NATIONAL LAW, for a commanding officer of troops, under the con- 
trolling government, to extend certain rights of war, not only over his 
camp, but its environs and the near field of his military operations. 
But no further nor wider. On this rested the justification of one 
of the great commanders of this country, and of the age, in a trans- 
action so well known at New Orleans." . ..." If matters in 



150 APPLICATION FOR 

this case had reaehed such a crisis, and had been so recognized by 
the government, or if such a state of things could and did exist 
as to warrant such a measure, independent of that government, and 
it was properly pleaded, the dtfcndunts might, perhaps, he justified 
within those limits, and under such orders, in making search for an 
offender, or an opposing combatant, and, under some circumstances, in 
breaking into houses for his arrest.'^ 

I ^vill restore the passage omitted at the place of the aster- 
isks above: "But in civil strife, they (the rights of war) are 
not to extend beyond the place -where insurrection exists. Nor 
to portions of the State remote from the scene of military opera- 
tions. Nor after the resistance is over. Nor to persons not 
connected with it. Nor even Avithin the same, can they extend 
to the person or property of citizens against whom no probable 
cause exists Avhich may justify it. Nor to the property of any 
person without necessity or civil precept." 

His Honor, at last, after all his reluctance, comes to a full 
admission of the legality of such arrests. The only condition 
is, time, place, circumstance. His Honor, however, substitutes 
a phrase. I have called it martial law. He calls it the rights 
of war. It is of no importance to my argument which phrase is 
used. The thing which he has been denouncing as an overthrow 
of all law, he at last admits to be lawful. He also places these 
personal arrests in the same category with military seizures of 
property, which that Court holds to be lawful. 

I may now turn to the opinion of the Court as delivered bv 
Chief-Justice Taney, p. 45 : 

"The remaining question," says the Chief-Justice, "is whether the 
defendants, acting under military orders, issued under the authority of 
tlie government, vrcrc justified in breaking and entering the plain- 
tiff's house. In relation to the act of the Legislature declaring mar- 
tial law, it is not necessary, in the case before us, to in([uire to what 
extent, or under wliat circumstances, that power may be exercised by 
a State. Cnipu'sti(jnably a military government, established as the 
jpcniKinriit govcnmu'iit ol' a State, would not be a republican govern- 
ment, and it would be the duty of Congress to overthrow it. But 
tho law of IilKjde Island evidently contemulatcd uo such government. 



xy 



WRIT OP HABEAS CORPUS. 151 

It was intended merely for the crisis, and to meet the peril in which 
the existing government was placed by the armed resistance to its 
authority. It was so understood and construed by the State author- 
ities, and, unquestionably, a State may use its military power to put 
down an armed insurrection too strong to be controlled by the civil 
authority. The power is essential to the existence of every government, 
essential to the preservation of order and free instifntions, and is a$ 
necessary to the States of this Union as to any other guvcrnment. The 
State itself must determine what degree of force the crisis demands. 
And if the government of Rhode Island deemed the armed opposition 
so formidable, and so ramified throughout the State, as to require the 
use of its military force, and the declaration of martial law, we see no 
ground upon which this Court can question its authority. It xoas a 
state of war ; and the established government resorted to the rights and 
usages of tear to maintain itself, and to overcome the unlawful opposi- 
tion. And, in that state of things, the officers* engaged in its military 
Service might lawfully arrest any one who, from the information 
before them, they had reasonable grounds to believe was engaged in 
the insurrection, and might order a house to be forcibly entered and 
searched, when there were reasonable grounds for supposing he might 
be there concealed. Without power to do this, martial law and the 
military array of the government icould he mere parade, and rather 
encotirage attack than repel it. No more force, however, can be used 
than is necessary to accomplish the object. And if the power is used 
for purposes of oppression, or any injury willfully done to person or 
property, the party by whonj, or by whose order, it is committed, 
would undoubtedly be answerable." 

""We forbear to remark upon the cases referred to in the argument, 
in relation to the commissions anciently issued by the kings of England 
to commissioners to proceed against certain descriptions of persons, in 
certain places, by the law martial. These commissions were issued by 
the king at his pleasure, without the concurrence or authority of Par- 
liament, and were often abused for the most despotic and oppressive 
purposes. They were used before the regal power of England was well 
defined, and were finally abolished and prohibited by the Petition of 
llight, in the reign of Charles the First. But they bear no analogy in 
any respect to the declaration of martial law by the legislative author- 
ity of the State, made for the purposes of self-defense, when assailed by 
an armed force; and the cases and commentaries concerning these 
commissions can not, therefore, influence the construction of the Rhode 



152 APPLICATION FOR 

Island law, nor furnish any tost of the lawfulness of the authority 
exercised by the government." 

This decision docs not determine in what l)rancli of tlie 
government resides authority to declare martial law. But it 
recognizes martial law as a legitimate means of preserving the 
government in emergencies calling for it. It shows that the 
ground taken by counsel on the other side, that no such authority 
is lodged in any branch of the government, is untenable. On 
page 44, the Court replies to the same kind of argument we have 
heard here, of the danger of intrusting so much power to the 
President. 

*' It is said that this power of the President is dangerous to liberty, 
and may be abused. All power may be abused if placed in unworthy 
hands. But it would be difficult, we think, to point out any other 
hands in which this power would be more safe, and, at the same time, 
equally efiectual. When citizens of the same State are in arms against 
each other, and the constituted authorities unable to execute the laws, 
the interposition must be prompt or it is of little value. The ordinary 
course of proceedings in courts of justice would be utterly unfit for 
the crisis. And the elevated office of the President, chosen as he is 
by the people of the United States, and the high I'esponsibility he 
could not fail to feel when acting in a case of so much moment, appear 
to furnish as strong safeguards against willful abuse of power as hu- 
man prudence and foresight could well provide. At all events, it is 
conferred upon him by the Constitution and laws of the United 
States, and must, therefore, be respected and enforced in its judicial 
tribunals." (7 II. 4t.) 

"Moreover, when u military force is called out to repel invasi<in or 
suppress a rebellion, it is not placed under the direction of the judi- 
ciary, but under that of the executive. Suppose the military force, 
legally and constitutionally called into service for the purposes indi- 
cated, should find it necessary, in the course of its military operations, 
to occupy a field or garden, or destroy trees, or houses, belonging to 
some private person, can a court, by injunction, restrain them from 
committing such waste? It can do so in time of peace, and if its 
powers arc to contimu; in time of war, the judiciary, and not the exec- 
utive, will command the army and navy. The taking or destroying 



WRIT OF HABEAS CORPUS. 153 

of private property, in such cases, is a military act, an act of war, and 
must be governed by the laws of war ; it is not prouded for by the 
laws of peace. In the same way, a person taken and held by the 
military forces, whether before, or in, or after a battle, or without 
any battle at all, is virtually a prisoner of war. No matter what big 
alleged offense, whether he is a rebel, a traitor, a spy, or an enemy 
in arms, he is to be held and punished according to the lavjs of war ^ 
for these have been substituted for the laws of peace. And for a 
person so taken and held by the military authority, a writ of Habeas 
Corpus can have no effect, because, in the words of the United States 
Supreme Court, 'the ordinary course of justice would be utterly unfit 
for such a crisis.'" (International Law and Laws of War. Ilalleck, 
378.) 

The same writer states circumstances in tlie history of this 
country, which your Honor will find it easy to verify. From 
this statement it appears that the practice, now complained of 
as strange and unprecedented, was commenced under the admin- 
istration of Washington. Jefferson and Jackson are also impli- 
cated. When Vallandigham shoots his poisoned arrows at 
President Lincoln, if there should prove to be strength enough 
in the bow, the same aim will pierce a succession of illustrious 
defenders of liberty. Here is the statement: 

"During the administration of President Washington, in the Penn- 
sylvania 'Whisky Insurrection' of 1794 and 1795, the military 
authorities engaged in suppressing it disregarded the writs which 
W'ere issued by the courts for the release of the prisoners who had 
been captured as insurgents. General Wilkinson, under the authority 
of President Jefferson, during the Burr Conspiracy of 1806, suspended 
the privilege of this writ, as against the Superior Court of New 
Orleans. General Jackson assumed the right to refuse obedience to 
the writ of Habeas Corpus, first in New Orleans, in 1814, as against 
the authority of Judge Ilall, when the British army -was approaching 
that city ; and afterward, in Florida, as against the authority of 
Judge Fromentin." 

May it please your Honor! I have spoken some words of 
praise of the character and services of General Burnside. I 



154 APPLICATION FOR 

can now be silent. The patriot who, in these times, can get 
himself abused for following in the footsteps of Washington, 
Jefferson, and Jackson, has triumphed over all need of my poor 
commendation. Tlic wrath of his country's enemies has been 
made to praise him. 

The authorities relied upon to show that the laws of war, or 
martial law, are not any more allowed in Great Britain, I have 
shown to be in error. The statements, though made by parties 
whom we might expect to be informed, and which have proba- 
bly misled counsel on the other side, are shown by Mr. Gushing, 
Attorney-General under the lato President Pierce, to have 
resulted from misapprehension and confusion of ideas. But 
this showing depends not on the authority alone of his name, 
strong as it may be. The errors referred to are so demonstra- 
ble to reason, and so utterly at variance with history, it is quite 
unnecessary to go into a further exposition concerning them. 
In the dissenting opinion of Judge Woodbury, which I have 
freely adverted to, he was misled into a similar statement; but 
he let into it a sufficient number of exceptions to correspond 
with all the occasions there have been in Great Britain for mar- 
tial law within the last hundred years, lie insisted, however, 
that they had no constitution, and such acts were only done by 
Parliament in virtue of its unlimited power. I must again say, 
that the question is not, who may do it, but can it be done? For 
the purpose of my argument it is sullicicnt if done by Parliament, 
but the fact is otherwise. The quotation from Hansard's Debates 
shows that once, at least, it has been done by the executive. I 
have no doubt the same is true in other instances. The import- 
ant matter is, however, it has been done, both in Great Britain 
and this country, every time there has been occasion for it. It 
is a rule of action in both countries. 

The misconception of terms and confusion of ideas among 
common lawyers, on this topic, are not confined to England. 
A much clearer perception is shown Ity American writers on the 
main ([ucstion involved; but even Mr. Gushing and Mr. Ilalleck 
fall into error in some particulars. The relations of suspension 



WRIT OF HABEAS CORPUS. 155 

of Habeas Corpus to martial law arc less well defined. They 
explain these to us in a jumble of words, which need more ex- 
planation than the facts sought to be explained. It has been 
the good fortune of Great Britain and the United States to 
experience so few occasions for the laws of war within their own 
borders, and those occasions have been of duration so brief, 
that a prompt and unflinching recognition and use of martial 
law, when the occasions have happened, is all that I need show. 
Peace turns attention to thoughts of peace. The judges, then-, 
take tlieir turn ; and danger being over, they sometimes bite 
their thumbs at the Generals in a very affecting manner. We 
are told that acts of indemnity are passed in order to cover the 
illegality of the laws of war, as if a law could be illegal ! 

When lawyers and judges fall to using rigmarole, it is not 
common for politicians and pamphleteers to allow themselves to 
be outdone. In the passage quoted from Hansard, Lord Castle- 
reagh is made to say : 

" I maintain that it is a constltufional mode for the executive gov- 
ernment to exercise martial law in the first instance, and to come to 
Parliament for indemnity afterward. . . . They did it on the prin- 
ciple thiit they icr.rc authorized hy the king's prerogative, provided they 
did not transgress the necessity of the case." 

This call for indemnity is often said to signify that the act 
was unlawful. What indemnity could be needed for a lawful 
act? So, then, it would appear to be a constitutional mode to 
do the unconstitutional thing, intending presently to apologize 
for it. Mr. Grey (afterward Earl Grey) was not impressed with 
the clearness of this explanation. He says : 

'' It was better that the executive government should resort to 
what had been called (he thought not legally) its prerogative of 
proclamiug martial law. That was no prerogative of the Crown, but, 
rather, an act of power sanctioned by ncccs^sity, martial law being a 
suspension of the king's peace." 

Here, then, is a blaze of light. It was better to resort to 
that which did not exist, to-wit: the prerogative. It was an act 



156 APPLICATION FOR 

of povrer " sanctioned " by necessity, " martial law being a sus- 
pension of the king's peace." This luminous expounder had 
arrived at the conclusion that in war peace must be considered 
as suspended. It did not, however, occur to him that it is war 
itself which suspends peace, and not the laws of war, which of 
necessity exist when war exists. 

Our own writers follow in the same train. Mr. Attorney- 
General Gushing, in the opinion before quoted, says : 

" We have in Great Britain several recent examples of acts to give 
constitutional existence to the fact of martial law^ 

Mr. Ilalleck says : 

'■'■It seems that no act of Parliament is required to precede such 
declaration, although it is iisually followed by an act of indemnity, 
when the disturbances xohich called it forth are at an end, in order to 
give constitutional existence to the fact of martial law^ 

They are explaining the laws of England, and on this part of 
the topic relax their vigilance, repeating merely the incongru- 
ous failures which they find. Passing over the idea that Parlia- 
ment can make a thing constitutional which is not — an absurd- 
ity — they are not boggled at the declaration that an act already 
gone by and ended, can be made io have been constitutional, 
which was at the time not so. On the theory thus furnis]ie<l by 
Englishmen, and incautiously followed by some of our best 
writers, indemnity acts, if truly expressing their meaning, would 
read as follows: " WhereaH, certain acts have been done which 
are known to have been unconstitutional and illef/al, therefore they 
were and are co7istitutional, legal acts.'' This is carrying the 
power of Parliament to a pitch compared with which Omnipo- 
tence is feeble. 

If I may venture to suggest the explanation they were mani- 
festly groping for, it is in the fact alluded to by Earl Grey : the 
king's peace is suspended. This suspension of peace being 
usually accompanied by more or fewer proclamatory documents, 
and these documents being the only part taken in war by judges 



WRIT OF HABEAS CORPUS. 157 

and legislators, tlicy have mistaken the documents for the war. 
They have omitted to remember that a fixilure of documents 
would not change the fact of war. The war, and not the docu- 
ments, suspends peace. Of this the writers arc sufficiently aware 
in other parts of their discussion. Mr. Attorney-General Gush- 
ing says : 

" When martial law is proclaimed under circumstances of assumed 
necessity^ the proclamation must he regarded as the statement of an 
existing fact, rather than the legal creation of that fact." 

In this statement Mr. Halleck concurs. Indeed, notliing can 
be more obvious. Yet most of the antipathy and all the argu- 
ments I have met with, directed against martial law, are argu- 
ments against enforcing it during peace. In other words, they 
are arguments against inflicting the rigors of war under false 
pretexts. A part of the confusion is occasioned by speaking of 
martial law as if it were distinct and diff'erent from the laws of 
war, or rights of war. No one doubts that, Avhen war exists, it 
is a thing of such a paramount and supreme nature that its laws 
must prevail. The existence of war is not a suspension of 
Habeas Corpus ; but, for all arrests authorized by the laAvs of 
war, the answer that war exists, and that the arrest was made in 
accordance with its rules, is a lawful and sufficient answer to a 
Habeas Corpus. General Burnside has expressed it very well : 
" We are in a state of civil war, and an emergency is upon us 
which requires the operations of some power that moves more 
quickly than the civil. There never was a war carried on suc- 
cessfully loifhouf the exercise of that powers 

Indemnity acts are sufficiently accounted for without supposing 
them to be necessary as a legal justification for acts of war. 
They are commonly enacted in civil wars, in which the applica- 
tion of the rigors of war is startling to people long accustomed 
to peace and civil administration. A concurrence of all branches 
of government in any public acknowledgment of its necessity, 
either before or after the fact, can not fail to produce a valua- 
ble eff'ect on the public mind. Such acts may, also, in England 
answer a good legal purpose. They may close the courts to 



158 APPLICATION FOR 

vicious ami exporimentul litigation, by -wliich persons engaged in 
the public service in time of war, might, on the return of peace, 
be ruined or compelled to flee their country. Counsel on the 
other side, I umlerstood him to say, by instruction of his client, 
has, at some Icnjith, called our attention to the number and 
variety of civil actions, to -which, on his theory. General Burn- 
side has exposed himself, as ■well as all who acted under his 
orders. On his theory, no act of indemnity can shield our sol- 
diers. The right he claims is a constitutional right, which legis- 
lation can not affect. On his theory, every act of war by our 
soldiers is a trespass, and no act of indemnity can reach them. 
Hard as the fortunes of soldiers may be in war, on his theory, 
peace Avill bring them no repose. Our poor country, defended 
by their valor, enriched by their blood, however grateful it may 
be, can only welcome them home to the embrace of bailiffs. 
We may ring bells, kindle bonfires, and pour out our hearts in 
thankfulness to God for returning peace, but the noble boys 
who won it for us must skulk in hiding-places, to dream only 
of writs and constables and the law's delays ; certain that their 
danger in peace is in proportion to their valor in war, and that 
he only can be hopeful who can prove himself to have been 
useless. This is not an exaggeration, but a necessary, logical 
result of the doctrine advanced here on behalf of Mr. Vallan- 
digham. 

The proposition is that the right to personal liberty, freedom 
of speech, etc., arc absolute, inalienable rights, guaranteed in- 
flexibly by the Constitution, and not lo be suspended in any 
emergency, nor made to yield to any public necessity. I repeat 
that the question argued by counsel on the other side is not a 
question under what circumstances tliese rights may be abridged, 
but he denies the legal possibility of sueli abiiilgiiieiit. Those 
rights extend to all citizens — to persons subject to military duty 
as well as the rest. Yet the same Constitution which guaran- 
tees these inalienable rights, authorizes the making of war and 
the calling out of the militia. Pressed by this fact, counsel do 
not seek to deny that the liberty of the soldier is, for the time 
of his service, abridged. This is too palpable for denial. IIo 



WRIT OF HABEAS CORPUS. 159 

seeks, therefore, to get round it by reading from an English 
decision, to the effect that tlie soklier gives up his liberty by 
contract. This poor evasion docs not apply to persons who arc 
drafted against their -will ; but it is itself a denial that these 
rights are inalienable, for it speaks of alienating, by contract, 
an inalienable right. 

The conclusion is inevitable. These rights, so carefully 
enumerated in the Constitution, and so often referred to by 
learned counsel, arc liable to be abridged under particular cir- 
cumstances. The Constitution contemplates and provides for 
such abridgment. This abridgment is especially provided for in 
time of war. And since no limits are fixed to the means to be used 
in war, every thing may be done which the necessities of war re- 
quire. The laws of war are, for the time, as much a part of the 
Constitution as the laws of civil procedure are in time of peace. 

My argument is founded on the idea that the laws of war 
are a necessary incident of a state of war, and, therefore, 
depend for existence only on the fact of war. It is quite unnec- 
essary to refer to proclamations or advertisements of the fact. 
Order No. 38 is a proclamation, if it were a question of proc- 
lamations. Every branch of government, State and Federal, has 
made numerous annunciations of this war. Counsel calls our 
attention to certain proclamations of the President relating to 
emancipation of slaves, which define, for that purpose, the insur- 
rectionary districts ; and counsel insists that these must be hold 
as limiting martial laAV to those districts. Those proclamations 
do not include Missouri, Kentucky, Tennessee, Western Vir- 
ginia, or portions of Eastern Virginia, or Norfolk or Portsmouth. 
If the laAvs of war depend on these proclamations, they are ex- 
cluded from the places where the war has been most active. 
They did not purport to define the limits of war, but the limits 
of emancipation. If my argument is sound, neither the presence 
nor absence of proclamations can, materially, afi'cct the question. 
It is a question of the existence of war. 

It may be said that this argument, if correct, reduces us to a 
state of dependence on military power. Far otherAvise. It is 
not a state to be argued into, or argued out of. If, when 



160 APPLICATION FOR 

threatened Ly Generals and armies who are traitors and ene- 
mies, we are obliged to depend upon Generals and armies who 
are patriots and friends, nothing can he gained by denying the 
fact, or by keeping up a false pretext of being in some other 
condition. The danger, whatever it may be, is not very much 
diminished by going into hysterics ; nor is it greatly changed 
in its character by the names applied. It is sometimes called 
"710 ?a«t'" — ^^an abrogation of law'' — "a supcnsion of laiv,'' 
because for a time the ordinary civil administration is suspended 
or subordinated to a great public necessity. But the law pro- 
vided for such occasions is in force. It is appealed to, to pro- 
tect us when other laws fail. 

The laAvs of war have their appropriate checks and limitations. 
The General in command of an army, in the field of his opera- 
tions, for purposes of war, is expected to act with promptness, 
and sometimes with secrecy. He is not expected to write out 
and deliver his opinions, or to wait for briefs. This may be his 
misfortune ; it certainly is not his fault. Ilis action in this 
sense may be called "arbitrary," and his administration "des- 
potic." But, after all, he is limited and restrained. If he push 
beyond the rights of war, the laws of war do not protect him. 
In applying those laws, he is further restrained by a sense of 
propriety and duty. He acts in peril of the disapprobation of 
higher authority, who may displace, or, in some cases, impeach, 
him ; in peril of the disapprobation of the Supreme Being and 
of his countrymen ; in peril of that sure infamy which awaits 
all who unnecessarily aggravate the evils of war. It is not easy 
to conceive a situation appealing to higher sanctions than that 
of a General conmianding in war. "yl^ all events," says General 
Burnside, " / will have the consciousness before God of having 
done nig dnlg to mg eoiDifrg.'^ 

May it please your Honor! I have pursued this branch of 
the argument at sonic length. H' tlie view of the Constitution 
here presented be, as it appears to me, well grounded in reason, 
and sustained by authority, the main proposition on wliich the 
petitioner rests his application is overthrown, and, willi it, the 
claim to a writ of Habeas Corpus. 



"WRIT OF HABEAS CORPUS. 161 

I did not understand counsel to argue that, in the case of 
Vallandijiham, there were circumstances to render this arrest 
illegal or unnecessary, provided such arrests can in any case be 
justified. I did distinctly understand him to disclaim the idea 
that the Constitution permits a military arrest to be made, 
under any circumstances, of a person not engaged in the mili- 
tary or naval service of the United States, nor in the militia of 
any State called into actual service ; and to rest his case on that 
broad denial. The whole petition is framed on this idea, for 
none of the charges are denied. 

Upon first impression, your Honor may have inclined to the 
belief that petitioner had assumed an unnecessary burden, and 
might have more easily made a case by putting General Burn- 
side to show the propriety of this arrest ; admitting the general 
right to make such arrests as were indicated by the necessities 
of the service, but denying any ground for this arrest. But 
your Honor will find that no mistake has been made by learned 
counsel on the other side, in this particular. The circumstances 
shown justify the arrest, if any arrest of the kind can be justi- 
fied. If General Burnside might have arrested him for making 
the speech face to face with his soldiers, the distance from them 
at which it was uttered can make little difference. lie might 
make it in camp ; and unless he could be arrested, there would 
be no way to prevent it. The right of publication, of sending 
by mail and telegraph, are of the same grade with freedom of 
speech. If utterance of the speech could not be checked, its 
transmission by mail and telegraph could not be. And I so 
understand the argument of the counsel of Vallandigham. It 
appears to claim, and go the whole length of claiming that it can 
do the army no harm to read such addresses ; nor, of course, to 
hear them. It is necessary the argument should not stop short 
of that in order to meet the question, and it does not. Yet 
this is not the whole extent to which it must go to avail the 
petitioner. It must go to the extent of showing that this Court 
is authorized to determine that such addresses may be heard by 
the army, the opinion of the commanding General to the con- 
trary notwithstanding. It goes and must go the extent of traus- 
11 



162 APPLICATION FOR 

fening all responsibility for -what is called the morale and dis- 
cipline of the army from its commanding General to this Court. 

Is it not certain that if these addresses shall persuade nobody, 
their authors will be disappointed ? Is it not certain that any 
soldier persuaded to believe that his government is striving to 
overthrow liberty, and for that purpose is waging a wicked and 
cruel war, can no longer, in good conscience, remain in the serv- 
ice ? The argument leads to one of two conclusions. We are 
to be persuaded by the men who make the speeches, that the 
speeches will not produce the effect they intend — a persuasion 
in which their acts contradict their words — or we are to con- 
sent to the demoralization of the army. The Constitution author- 
izes and even requires the army to be formed, but at that stage 
of the transaction interposes an imperative prohibition against 
the usual means of making it effective. 

It is said, however, that the charges against Yallandigham 
are triable in the civil tribunals. So are a large proportion of 
all the charges which can be brought against any one engaged 
in an insurrection. No rebel soldier has been captured in this 
war, no guerrilla, who was not triable in the civil tribunals. The 
argument in this, as in other particulars, necessarily denies the 
applicability of the laws of Avar to a state of war. 

Learned counsel on the other side has cited to us and read 
passages from decisions and text-books, on two points, the 
relevancy of which to the question now before us I am not 
able to perceive. One scries of these citations reminds us 
of arrests which were not made in accordance wiih any laws, 
cither of peace or war, which were declared illegal and punished. 
I can, if he shall think them useful, furnish him many more of 
the same kin<l. But I am under an impression that when an 
arrest has been shown to be illegal, no further autliority will be 
necessary to show that the person making it is liable to punish- 
ment. He has road to us an account of the execution of Gov- 
ernor W;ill. Afh'r pence had been restored, and after a pre- 
tended, lull illci/id tr'ud Jnj cnurl-martial, he caused a j^unishment to 
be inflirlrd trhirh renullcd In the death of the soldier punishrd ! lie 
was himself punished for the act. What has that to do here ? 



WRIT OF HABEAS CORPUS. 1G3 

He cites to us a case where a justice of the peace, not liahle to 
military duty, had been fined by a militia courtMnartial, u'hich 
had no jurisdiction over him, for omitting to do Avliat he was not 
bound to do; and the whole proccedin<5 was declared illegal. 
AVhat has that to do here ? He cites to us a case, growiu"; out 
of the celebrated John Wilkes controversy, where arrests were 
made, and houses and papers searched, under a pretended war- 
rant, issued by a person having no right to issue a warrant. It 
was a trespass, and the jury put on, as they ought, heavy dam- 
ages. "What has that to do here ? 

I need not follow these citations. None of them have any 
other bearing that I am able to perceive, than to show that 
illegal arrests are not to be justified. Who claims that they 
are? None of these citations show, or tend to show, that the 
arrest here is not in accordance with the laws of war. It comes 
back to the original question. In time of war, do the rules of 
war prevail ? If they do, arrests made in accordance with them 
ar(? legal. If they do not, every rebel who has been captured 
has his action of trespass and fiilse imprisonment against the 
soldiers who captured him. If they do not, every soldier who 
has killed his enemy in battle is liable to be prosecuted for it 
as a crime. This is the only alternative. Need I pursue the 
argument ? 

Another class of authorities cited by counsel bears upon the 
old and familiar doctrine of constructive treason. Its bearing 
on the question before the Court I am not able to discover. But 
since there may be some connecting link, not visible to the naked 
eye, let me say that, on the strength of his own citations, I should 
expect your Honor to feel compelled to instruct the jury, if Val- 
landigham were now on trial before a jury, charged with treason, 
that the case was a serious one, and deserved their most solemn 
deliberation. His citation from Blackstone gives us a clue, if 
one were needed, to the whole labyrinth. " How fiir mere words, 
spoken by an individual, and not relative to any treasonable 
ACT OR DESIGN THEN IN AGITATION, shall amount to treason, has 
been formerly matter of doubt." So in his citation from 1 Hale's 
Pleas of the Crown, 146, a bare detainer, or shutting the gates, 



164 APPLICATION FOR 

against the government, might not amount to treason. ^^ But if 
this hv done ix confederacy WITU enemies, or rebels, (hat circum- 
stance will make it treason." Again, his citation from 4 Crunch, 
127 : '• It is not the intention of the Court to say, that no indi- 
vithuil can be guilty of this crime who has not appeared in arms 
against his country. On the contrary, if tvar he actually levied^ 
that is, if a body of men be actually assembled, for the purpose of 
effecting, by force, a treasonable purpose, all those wuo perform 
ANY PART, HOWEVER MINUTE, or HOWEVER REMOTE 
from the scene of action, and who are actually leagued in the 
general conspiracy, are to be considered as traitors."" 

Admitting that words, or a mere conspiracy to levy war, no 
war being yet levied; or enlisting of men for war, no war being 
yet levied, do not amount to actual levying of war, the whole 
doctrine claimed by counsel, yet the case of Vallandigham has 
not been reached. War is levied. A body of men is assembled 
for the purpose of effecting, by force, a treasonable purpose. This 
body of men has military occupation of a large part of the 
country. There is no doubt of the establishment of this part of 
the case. What follows? The Court would tell the jury that 
" all those who perform any part, however minute, or however 
remote from the scene of action, and who are actually leagued in 
the general conspiracy, are guilty of treason." The Court would 
tell the jury, that the acts of Vallandigham were not too minute 
nor too remote for guilt. The question for them would be, 
whether he was actually leagued in the general conspiracy? 
And this they would be able to form their opinion upon from all 
the circumstances. They must impute to him a design to accom- 
plish just what his actions had a tendency to accomplish ; this 
is the only legal way of ascertaining motives. Wrre the acts 
of Vallan<ligham apjiarently aimed at the same result with the 
acts of those unecjuivocally engaged in open treason? His 
determination to resist Order No. 38, which forbade lending assist- 
ance to the rebellion, was a circumstance. His former and pres- 
ent relations with the leading traitors mij^ht be considered. His 
pretended knowledge of terms offered by those engaged in the 
rebellion, to the government, not known to the loyal part of the 



WRIT OF HABEAS CORPUS. 165 

people, and his hearty indorsement of their side of the negotia- 
tion, miglit be considered. The jury must remember that many 
things besides bearing arms were necessary to the success of the 
general purpose, and so on. If the charges against Vallandig- 
ham, which stand here without denial, are true, his conviction of 
treason, before an impartial jury, would be almost certain. IJut 
on an application for a Habeas Corpus, the Court does not de- 
termine the question of guilt or innocence. I can not, therefore, 
see the relevancy of this part of the argument. 

Learned counsel has read to us certain resolutions of the 
Ohio Legislature, said to have been adopted during the Mexican 
war, strongly pronouncing against that war, and advising its dis- 
continuance. Does he claim that there was then on foot any 
military force levying a trcaaonahle war against the United 
States? "What, then, has that to do here? What, in any event, 
has it to do here ? Does he claim that those resolutions were 
justifiable ? 

Among the numerous instances cited of constructive treason, 
is one quite touching. A man, whose deer had been killed by 
the king, wished it, horns and all, in the king's belly. The 
judge is reported to have held this to be a treasonable saying, 
and the man was executed. The horns might have been trouble- 
some, but one would think the horns part might have been 
pardoned or condoned, considering the manifest benevolence of 
wishing all the rest of the deer there, also. Why, counsel is 
seeking to impress us with a sense of the danger of allowing any 
kind of cases to be withdrawn from the courts; and he reads us 
instances showing that whatever abuses may have been commit- 
ted by military men, they fall short of the abuses committed by 
courts and juries! What has all that to do here? 

May it please your Honor ! I must bring this argument to a 
close. Are we in a state of war or not ? Did the Constitution, 
when it authorized war to be made, without limitations, mean war, 
or something else ? The judicial tribunals provided for in the 
Constitution, throughout twelve States of the Union, have been 
utterly ovei'thrown. In several other States they are maintain- 



IGO APPLICATION FOR 

ing a feeble and uncertain hold of their jurisdiction. None of 
them can now secure to parties on trial the testimony from 
large portions of the country, to which they are entitled by the 
Constitution and laws. Tlie records of none of them can be used 
in the districts dominated by the insurrection. They are all 
struck at by this insurrection. Counsel tells us that, except 
the Union provided for in the Constitution, there is no legal 
Union. Yet that Union is, temporarily I hope, but for the 
present, suspended and annulled. This Court can have no 
existence except under that Union, and that Union now, in 
the judgment of those who have been intrusted by the Con- 
stitution with the duty of preserving it, depends upon the 
success of its armies. The civil administration can no longer 
preserve it. 

The courts which yet hold their places, with or without mili- 
tary support, may perform most useful functions. Their juris- 
diction and labors were never more wanted than now. But they 
were not intended to command armies. When Generals and 
armies were sent here, they were sent to make war according to 
the laws of war. I have no authority from General Burnside 
to inquire, and I have hesitated to inquire, but, after all, will 
venture to inquire, Avhether an interference by this Court with 
the duties of military command must not tend to disturb that 
harmony between different branches of government, which, at 
this time, is most especially to be desired ? 

Counsel expresses much fear of the loss of liberty, through 
the influence of military ascendency. Are we, on that account, 
to so tic the hands of our Generals, ns to assure the over- 
throw of the Constitution by its enemies? I do not share 
that foar. It has been the fashion of society in ninny coun- 
tries to be di\i(l('d into grades, and topped out with a single 
ruling family. In such societies the laws and habits of the 
people correspond with its social organization. The two ele- 
ments of power — intelligence and wealth — arc carefully secured 
in the same hands with political power. It has happened in a 
number of instances, that a successful General gained power 



WRIT OF HABEAS CORPUS. 167 

enough to push the monarch from his throne and scat himself 
there. In such instances the change was chiefly personal. Lit- 
tle change was necessary in the social organization, laws or 
habits. It has also happened that democracies or republics, which 
have, by a long course of corruption, lost the love and practice 
of virtue, have been held in order by a strong military hand. 
But in this country no man can gain by military success a danger- 
ous ascendency, because the change would require to be preceded 
by a change in the whole body of laws, in the habits, opinions, and 
social organization. History furnishes no example of a success- 
ful usurpation under similar circumstances, and reason assures 
me it would prove impossible. Our society has no element on 
which usurpation could be founded. My sleep is undisturbed, 
and my heart quite fearless in that direction. I do not fear that 
we shall lose our respect for the laws of peace by respecting 
the laws of war ; nor our love for the Constitution by the sac- 
rifices we make to uphold it. I do not fear any loss of demo- 
cratic sympathies by the brotherhood of camps. I do not fear 
any loss of the love of peace by the sufferings of war. I am 
not zealous to preserve, to the utmost punctilio, any civil right 
at the risk of losing all, when all civil rights are in danger of 
overthrow. The question of civil liberty is no longer within 
the arbitrament of our civil tribunals. It has been taken up to 
a higher court, and is now pending before the God of Battles. 
May he not turn away from the sons whose fathers he favored! 
As he filled and strengthened the hearts of the founders of our 
liberty, so may he fill and strengthen ours with great constancy ! 
Now, Avhile awaiting the call of that terrible docket, while drum- 
beats roll from the Atlantic Ocean to the Rocky Mountains, while 
the clear sound of bugles reaches fiir over our once peaceful hills 
and valleys; now, when the hour of doom is about to strike, let us 
lose all sense of individual danger; let us lay upon a common 
altar all private griefs, all personal ambitions; let us unite in 
upholding the army, that it may have strength to rescue from 
unlawful violence, and restore to us the body of the American 
Union — E Phiribus Unum! Above all, Almighty God! if it 



168 



cot*^' 



xt.^^\ 



ArPLICATION FOR WrJT OF 




shall please thee to subject us to still 

if it be thy will that we pass furtht 

noss of disorder, yet may some little 

move thee to a touch of pity! Spare us .. 

degradation! Save! save us from the littleness to be jealous 

of our defenders ! 



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